[26] The applicant gave evidence in relation to conflict in her workplace prior to her dismissal. She said that in January 2013, Ms Maria Spies, Head of Learning, Teaching & Technology Services had told her that her leadership skills needed improvement. She was directed to attend a formal meeting with Ms Hilde Driessen, Human Resources Manager. The applicant had sent Ms Spies an email on 25 March 2013 in the following terms:

'I would like to write to you about the meeting you flagged in your email, to me of 1 February 2013. The meeting was to be in your words 'a proper discussion of the issue' of your opinion of my leadership and interpersonal skills. However, now more than seven weeks has passed since that email and there has been no meeting, nor has a date has been set. Perhaps you realise that your claims will not stand up to scrutiny, which would be good news.

My employment at ACAP is under a cloud. I am anxious and have trouble sleeping because this meeting is supposed to substantiate your unsubstantiated claims regarding my job performance, but time is passing and no meeting has been arranged. This is in spite of the fact that I requested that any such discussions take place promptly. I ask that a date be set, and that I have at least one week's notice, in order to prepare. A suitable time will also have to be arranged so that my NTEU support person can be present.

[27] The applicant attended a meeting with Ms Spies and Ms Driessen on 9 April 2013. Mr Kobie Howe of the National Tertiary Education Union (the 'Union') attended with her. Ms Spies had referred to anonymous feedback from other employees that the applicant was autocratic in her style and approach to staff.

[28] The applicant complained that Ms Spies had allocated her 'huge' extra reporting responsibilities. She had sought extra resources from Ms Spies in a three page memo to her dated 7 June 2013. This request was not granted and she was directed to attend a further meeting on 27 June 2013. The applicant claimed that in the course of that meeting (with the same attendees), Ms Spies had falsely asserted that she had apologised to her, in the past, for being disrespectful and discourteous to her.

[29] After reading Ms Spies' final comments of her performance review in August 2013, the applicant provided a written response. She alternately refuted Ms Spies' comments and attributed any perceived shortcomings to a lack of resources - resources which she had previously sought and had been denied. She described a number of Ms Spies' points as 'vague'. In response to Ms Spies' report that her 'leadership behaviours had improved', the applicant had responded that her 'leadership skills were always good and have not changed; the team members that I work with have changed.' She took issue with an assertion by Ms Spies that she was not open to compromise to achieve critical goals and that she was inflexible. She said that Ms Spies' assertions on this point were unsubstantiated by reference to particular incidents. She strongly disagreed that she had been disrespectful when she had told Ms Spies she was 'lying' at the meeting on 27 June 2013.

[30] The applicant lodged a formal grievance on 27 September 2013 after she had been told that her salary would not be adjusted from 1 July 2013. She received a response from Mr Andrew Little, Principal Executive General Manager on 22 October 2013, stating that he would be the Grievance Handler and Decision Maker in relation to her grievance. As she believed the procedure followed by the respondent was 'informal', she had sought a formal grievance process on 20 November 2013. This was refused by Mr Little in a further email on 11 December 2013, on the basis that the applicant had refused to sign a blanket confidentiality agreement. The applicant conceded that the confidentiality requirement in relation to her grievance process would not have prevented her talking to her Union official or lawyer.

[31] The applicant said that she was asked to attend an 'informal talk' with Ms Driessen and Dr Dickson in Dr Dickson's office on 27 February 2014, in relation to allegations made by Ms Jacqui Parker, one of her subordinates. She sent an email to Ms Driessen and Dr Dickson on 28 February 2014 in the following terms:

'After reflecting on the informal talk/meeting with you that I was called to yesterday, I would like to ask a few questions so that I can be clear on the purpose of the meeting. Could you please let me know in writing:

1. Whether you approached Jacqui Parker or whether she first approached you regarding problems with her SLS position and or myself.

2. What her complaints were or serious criticisms of me or my behaviour (I am aware that she was not happy that I contacted her daughter [my emphasis]).

3. Can you confirm that you (Hilde) know of no problems between Jacqui Parker and the School of Counselling where she was a teacher until recently?'

Dr Dickson refused to provide an answer to the third question on that basis that it was irrelevant. The applicant said that she did not get answers to her other questions.

[32] On 25 March 2014, the applicant received an email from Mr Richard Arkell, Acting Principal, informing her that her position would be made redundant, but that Navitas would make 'every effort' to find an alternate position for her. Dr Dickson sent her a letter on 31 March 2014 informing her that she had been made redundant. She did not work for the respondent after that day.

[33] The applicant referred to the respondent's evidence that her redundancy had been necessary to 'bring the Student Learning Support (SLS) Services within the NPI Colleges together.' The College, for which she was the Manager of Student Learning Support, Australian College of Applied Psychology (ACAP) had approximately 3,900 students, many more than in the other Navitas Colleges. The only difference between her role and the new role was that it would involve an increase of 20% in the number of students. She was already liaising with Heads of School, Regional Directors and General Managers in her role as Manager, Student Learning Support. There was no reason why she could not perform the new role and the respondent was aware of her extensive qualifications and substantial experience. In referring to Dr Dickson's statement, she denied that her work was restricted to ACAP.

[34] The applicant claimed that the respondent had not engaged in a proper consultation process, as she had not been asked whether she could perform the new role. She had never been asked if she had experience in reporting department activities at industry forums. Indeed, she had made such presentations in the past. She believed that any attempts by Navitas to find an alternative role for her were 'cursory'. Her redundancy was a 'sham' designed to end her employment.

[35] The applicant said that she went to Melbourne for talks on the integration of SLS services, on or around 25 February 2014 (for the first time with Navitas) to talk to Ms Angela Bradley (Head of Health Skills Australia (HSA)), Mr Ed Irons (Learning Support Officer, National College of Public Safety (NCPS)) and Ms Jacqueline Delord (Human Resources Coordinator). She denied having said that she did not have any ideas when she met with Dr Dickson on her return on 26 or 27 February and, in any event, this was just a passing encounter and could not be said to be a meeting.

[36] The applicant rejected Dr Dickson's evidence that her reports lacked 'deeper analysis' and said that the conclusion he had drawn from the email of 20 February 2014 (see para [95]) was incorrect. She had been conscientious in attempting to ensure that the SLS service would not be short staffed as a result of Dr Dickson going on leave.

[37] The applicant explained that on 28 February 2014, she had conducted a performance assessment of her subordinate, Ms Belinda Cutting in a public area as Ms Cutting had delayed the process, which was due to be completed by 5:00pm that day and had refused to have the meeting in private, without a support person present. She would have been happy for Ms Cutting to have a support person, but no-one was available. Ms Cutting seemed to become upset during the review and they were approached by Dr Dickson.

[38] The applicant emphasised that she had only had short notice of the meeting with Mr Dickson and Ms Driessen on 25 March 2014 and she told him that she was busy. Dr Dickson had said that it would only take 6 or 8 minutes. She was uncomfortable with this, which was why she remained standing throughout the meeting. She had been polite and businesslike during this meeting. She had not said 'No. I don't have time for this and / don't want to sit down'. Nor had she refused to take the day off.

[39] The applicant stated she had not applied for the new position as this would have meant acknowledging that she was just one of many candidates. She added: 'The issue is not whether I compare well with other candidates, but whether I am capable of doing my job.'

[40] The applicant referred to Ms Driessen's evidence and clarified that the SLS role did not include assistance with content. The help given by staff members was restricted to text organisation, formal and academic (where appropriate) English language skills, time management and study techniques. The applicant believed that Ms Driessen had extracted her comments in relation to criticism of her leadership skills out of context.

[41] In cross examination, after Mr Frost referred to emails annexed to her statements, the following exchange took place:

'MR FROST: Ms Bertrand, in your second statement, the one that's marked exhibit 2, you've attached 39 documents, including eight documents numbered FB20 to FB27, which are put forward as copies of emails between Ms Jacqui Parker and Ms Susannah Gregory. Is that right?---Not just Susannah Gregory. There are some of the emails that have been written to other people.

But the emails include Ms Parker and Ms Gregory?---Yes.

Those emails were not emails to or from you, were they?---They may have included some emails from me.

They weren't sent to you, were they?---Well, each document has more than one email, so within the document there may be emails to me.

Are you saying that some of those emails - and I'm talking about the eight chains of emails from FB20 through to FB27?---Yes.

Are you saying that some of those emails were sent to you?---Yes, I am.

Where did you get the emails - the emails that were not sent to you?---Okay. So I decline to answer that on the grounds of relevancy. I feel it's not relevant.

I press the question. It bears on - I press the question.

THE DEPUTY PRESIDENT: Yes, you must answer the question?---Okay. I decline to answer on the grounds that I may incriminate myself.

THE DEPUTY PRESIDENT: Ms Bertrand, this isn't a criminal trial.

MR FROST: The emails in the main, if not exclusively, are between two other employees and relate to the dealings that one of both of them have had with Ms Bertrand. It appears, on the face of the emails, that they were not sent to Ms Bertrand, and that they must have been obtained by some inappropriate means. That's the appearance on the face, hence the question. If there has been some tampering with email systems then there's a potential for Ms Bertrand to have breached - I will use a neutral term - legal obligations in relation to those acts.

The respondent, I submit, is entitled to know where these emails came from. I think it bears on the approach the commission should take in determining the application; but I'm not sure that the reference to incrimination is inappropriate.

THE DEPUTY PRESIDENT: Are the persons exchanged in the emails giving evidence?

THE DEPUTY PRESIDENT: Ms Bertrand, if you refuse to answer, there may well be an adverse inference taken. So if there's a perfectly reasonable explanation as to how you obtained those emails, you should say so?---Well, I'm not saying there isn't a perfectly reasonable explanation, but - and I don't believe I've done anything illegal, but just in case, I've been advised to say that I decline to answer on the grounds that I may incriminate yourself.

Who told you that?---A person who has been advising me.

Well, I'm asking you a question?---I'm representing myself.

You're now telling me that you're getting advice which is directly contrary - - - ?

- - - which is directly contrary to your earlier submissions when we were discussing permission to appear, you said it was all unfair because the employer was represented by a lawyer. It now appears you're getting some form of legal advice, because an ordinary person would not talk about incrimination in civil proceedings?---Every statement I'm making, I'm taking responsibility for myself. There's no lawyer here. My support person is not a lawyer. I'm not being represented by a lawyer.

But you've had some advice, have you not?---As the other side has also, yes.

You never told me that before?---What has it got to do with it?

It may go to questions of your credibility. I require you to answer the question?

---I'm sorry, I can't. I won't, on the grounds that I may incriminate myself.

In what way?---I don't - I don't have the legal knowledge to know what's - - -

So how do you know?--- - - - and what's not. I've been advised to say that and not to answer.

I've just told you that a submission is going to be put about this from the respondent and it may well be that adverse inferences will be drawn because of your refusal to answer the question.'

[42] The applicant believed that these emails proved that Ms Gregory and Ms Parker had colluded to make her job difficult and that they were encouraged to do so by the Management of Navitas. She agreed that most of the emails were between Ms Gregory and Ms Parker. None were between either one of them and the Management of Navitas. She accepted that neither she, Ms Gregory or Ms Parker had been present in the meetings where the decision was made for her role to be made redundant and that she did not know what had been discussed in those meetings.

[43] The applicant agreed that ACAP was an organisation within the Navitas Group. There had been a name change to Navitas Professional Institute around June or September 2013. She noted that she had made preparations to extend the services that she was in charge of across all the Navitas Colleges. She had travelled to Melbourne to meet personnel from the Colleges from there, but this was at the stage of preliminary planning.

[44] The applicant acknowledged that the position description attached to her contract of employment described her role as 'Manager, Student Learning Support' and that this role only related to ACAP. However, she said that this role had changed in February 2014 in discussions she had with Dr Dickson at that time. She had not been given a new position description, there had been no formal steps to change her role title and she continued to be employed by Navitas.

[45] The applicant agreed that the Navitas Workplace Division and Navitas English had merged to form a new organisational unit called Navitas Professional and English Programs (PEP). One Unit within PEP was NPI. NPI was made up of four previously existing businesses, being ACAP, NCPS, HSA and the Australian TESOL Training Centre (ATTC). Dr Dickson had assumed the role of heading up NPI as Dean as part of this gradual process. He had previously been Dean of ACAP. The applicant accepted that she reported to Ms Spies until September 2013. Her role then reported to Dr Dickson in his capacity as Dean.

[46] In response to a question as to whether other Colleges had SLS functions, the applicant agreed that NCPS had a part time SLS resource. Health Skills Australia had no allocated SLS resources and she had never been told whether ATTC had SLS resources.

[47] The applicant said that her regular weekly or fortnightly meeting with Dr Dickson had been cancelled on 26 February 2014, after she returned from Melbourne. She denied that the brief conversation in passing she had with Dr Dickson constituted a 'meeting'. She referred to Dr Dickson's evidence that she had been asked for her thoughts on how the business could integrate SLS across the NPI Colleges and that she had responded negatively, as a 'fabrication'. She was disappointed that there was no real follow-up; Dr Dickson was on leave in March. There had been a discussion prior to her trip to Melbourne, in which she and Dr Dickson had discussed extending the services across the Colleges, which took place at the end of January or the beginning of February 2014 and he had asked her to draw up a position paper. She had been aware from January or early February 2014 that Navitas was considering extending SLS services to at least NCPS and HSA, but denied that there had been further conversations with Dr Dickson.

[48] The applicant agreed she had been sent an email on 24 March 2014 proposing that she attend a meeting at a set time the next day. She sent an email on 25 March 2014 saying that she was too busy and proposed another time. Dr Dickson had then called her and asked her to attend the meeting, which she did directly after the telephone conversation. She rejected a proposition that this failure to mention the email of 24 March 2014, in her written evidence, was misleading.

[49] The applicant agreed that she had declined to sit during this meeting. She could recall the word 'restructure' being used. She had been told that her skill set did not match the new role and that she and her role were redundant. Dr Dickson said that the College would consider other positions for her. She had not proposed any positions to which she could have been redeployed during the period between 25 and 31 March 2015. She had not been aware of, prior to the evidence given in these proceedings, of the steps taken by the respondent to find an alternative position for her. There was no discussion as to who would be recruited into the new position across NPI Colleges. Any evidence that she had been given a position description in relation to this position was 'fabricated'.

[50] The applicant could not recall being given the complete Navitas policy and procedure for redundancy, but may have been given an extract from it. However, she had been given an Employee Assistance Program flyer. She had also been given a letter from Mr Arkell which referred to the redundancy policy, but there had been nothing else attached to the letter.

[51] The applicant believed that Ms Driessen had been lying to her when she said that there were steps being taken to seek her redeployment. She did not believe that there had been any genuine redeployment efforts made. Ms Driessen had sent her an email headed 'Estimated Redundancy Calculation' on 26 March 2014. While this email asked if the applicant had any questions about the redundancy of her role, she did not accept that Ms Driessen was seeking to engage in the redundancy and redeployment process. It was merely made to look as if they were engaging with her. She had received a position description for the new position which was virtually identical to her current one.

[52] The applicant had responded to this email by seeking a meeting to have the changes explained to her, including who would be undertaking duties that she carried out and how SLS would be restructured. She had asked that a Union official be present and the earliest anyone could attend was Friday 28 March 2014. Navitas had proposed meeting at 11:00am, 11:30am or 12:00pm and asked that she respond to confirm the Union official's availability. She did not respond until 9:00am, Friday 28 March when she wrote to Ms Driessen to say that she had been unable to fix a time for the Union official to attend, that she was feeling unwell and would not be attending ACAP that day and that she would post her keys and swipe card to the respondent. She had not done so, because nobody had asked her to send them in.

[53] The applicant agreed that Ms Driessen had offered to extend the consultation period to Monday and then said again on Monday that the College was continuing to look for suitable alternative roles for her. She regarded this process as a 'sham', but had participated by indicating the roles in which she would be interested. She came to strongly suspect that the process was a 'sham' by 27 March 2014. She clarified that she sought a role at a similar level at CBD premises or within Sydney which was within a reasonable distance of her home in Bexley. She agreed that Ms Rosemary Hans from Navitas had sent an email asking if there were any available positions. She was not saying that Ms Hans was part of the 'sham'. She denied that her view that the process was a 'sham' was self-fulfilling. She believed that Navitas were unhappy with her and wanted her to go. She denied that this was the reason she had not attended the meeting on 28 March 2014. She had not looked for a job within Navitas. She had been sent a confirmation of her redundancy on 31 March 2014.

[54] After considering the position description and becoming aware of the person working in the role, the applicant did not accept that the new NPI focused role had a significantly more senior leadership focus, than her previous role. She did not believe that the new role attracted a remuneration package of $120,000p.a., rather than her own $85,000p.a.

[55] In response to questions from me, the applicant said she had not applied for the new role and explained: 'Because I don't think it's a matter of me being the best for the position, it's a question of whether I can do it effectively.' She did not believe that the person in that role was more qualified than her. She knew this because she had perused the person's LinkedIn profile. She acknowledged that she could not know how a person would perform at an interview. If she had been doing the job, which she had been from February 2014, and she was capable, then she should have been retained. She maintained that the planning work she did in February 2014, constituted management responsibilities for the three Colleges. However, she conceded that she did not manage the provision of SLS services in the other Colleges. She did not believe that a candidate would need extensive experience within tertiary education at a senior tertiary management level to perform the new role. She refuted a proposition that she did not have a demonstrated capacity to drive cultural change and establish strong partnerships and network.

[56] The applicant disputed Dr Dickson's evidence that the ACAP student numbers consisted of 3,800 and that of NPI in total consisted of 6,700. She had retained and relied on information from the respondent's database to prosecute this case and to get her job back. She acknowledged that this information included confidential student information. However, she believed that who the information belonged to was irrelevant.

[57] The applicant rejected the proposition that she was an unsuccessful leader of the SLS role at ACAP or NPI. She had never received any indication from Dr Dickson that he was unhappy with her management. Ms Spies had talked vaguely of leadership issues, based on anonymous feedback from Melbourne and Brisbane. The applicant acknowledged that her individual performance was given as a reason for the College denying her a salary increase, but she did not accept adverse findings as to her performance and leadership style. She accepted that Navitas was within its rights not to award her a salary increase.

[58] The applicant defended her decision to conduct a performance review in a public area, saying that 'It wasn't optimal, but it wasn't a terrible thing.' It was a Friday and there had been no people walking past.

[59] The applicant acknowledged that the respondent had paid all her legal entitlements.

[60] I note that, at the close of the respondent's evidentiary case, the applicant submitted an email from Ms Spies to her, dated 7 June 2013. This related to the reporting requirements which Ms Spies had expected from the applicant and her team at the time.

[61] Dr Dickson has been employed as Dean of Navitas' Colleges since February 2012 and was Dean of ACAP between February 2012 and July 2013. Since July 2013, he has been Dean of ACAP, NCPS, ATTC and HSA. He was previously employed by the Australian College of Physical Education between March 2004 and February 2012. He holds the following qualifications:

• Bachelor of Education (Physical and Health Education), University of Wollongong;

• Master of Education, University of Wollongong; and

• Doctor of Philosophy, University of New England.

[62] In written evidence, Dr Dickson referred to the applicant's employment contract and the position description, which indicated that the applicant was employed in the role of Manager, Student Learning Support. Before the restructure in July 2013, the applicant had reported to Ms Spies in her role as Head of Learning, Teaching and Technology Services (LTTS). After this date, the applicant reported to him.

[63] Dr Dickson explained the restructure of the respondent's operations in July 2013. It consisted of Navitas Professional and Navitas English merging to form Navitas Professional and English Programs (NPEP). NPI was one of the new business units within NPEP. ACAP, NCPS, HSA and ATTC were brought under NPI. He had initiated a change in structure and reporting line for SLS services, which had previously come under LTTS, headed by Ms Spies. LTTS formed part of the Teaching and Technology Services team after July 2013, but he requested that SLS be moved into the NPI business, because it related directly to the academic success of students. He became responsible for SLS services in September 2013. This arrangement had been communicated to the applicant in a letter dated 16 September 2013.

[64] Since assuming responsibility for the NPI Colleges, Dr Dickson had been involved in ongoing reviews to integrate them. He felt SLS services needed to be more widely offered. Mr Andrew Little, Executive General Manager agreed that he should arrange this focus. Industry regulators expected quality SLS services available to all students. There was an underlying principle that all students, regardless of the course delivery type and geographical location, should be able to access information and services at a level of quality consistent with any other students. This led to further centralisation and integration for all the NPI Colleges.

[65] Together with Mr Little, Dr Dickson had discussed the creation of a senior role for SLS services, which was more senior to the role performed by the applicant and had offered his opinion that the applicant was not a suitable candidate for such a role. He had decided that there should be a nationally based leadership role, reporting directly to him. Because SLS services would be coordinated and performed centrally, there would be no need for the ACAP specific position. He had consulted with Ms Driessen, HR Manager (PEP) in developing a proposal for the recruitment of Head of Student Learning Support and the redundancy of Manager, Learning Student Support.

[66] Dr Dickson set out the key responsibilities of the successful candidate in the role of Head of Student Learning Support as follows:

(a) Leading the strategic expansion of SLS services across NPI academic units.

(b) Leading the development of SLS activities based on industry best practice.

(c) Leading the development of SLS services to online students.

(e) Fulfilling reporting obligations and coordinating communications systems and processes.

(f) Representing NPI and NPI Colleges in the community and interacting with internal and external stakeholders.

[67] Dr Dickson was also of the view that it was implicit that the new role be able to:

(a) identify resource needs amongst the NPI Colleges;

(b) manage the existing SLS service units within NPI Colleges and their staff;

(c) liaise and engage with existing SLS service units to bring them 'on board' with a central and harmonised SLS services system, so as to facilitate a cohesive team; and

(d) understand and apply the most current scholarly thinking and developments to the process.

[68] Accordingly, Dr Dickson believed that the following skills and experience were essential in a successful candidate for the new role:

(a) a PhD or equivalent work experience in an area relevant to this position;

(b) extensive experience within tertiary education at a senior academic management level with a thorough understanding of contemporary student learning support methodologies and the ability operate in a commercial environment;

(c) demonstrated experience in effectively managing resources, budgets and workforce plans;

(d) demonstrated capacity to inspire and innovate and to identify and take advantage of new opportunities;

(e) excellent written, oral communication and presentation skills;

(f) capacity to drive cultural change and establish strong partnerships and networks; and

(g) high-level management and interpersonal skills with a proven ability to motivate, mentor and challenge.

[69] Having considered the above requirements, a position description for the Head of Student Learning Support was developed. A copy of the position description is annexed to this decision and marked 'Annexure B'. Dr Dickson considered that the new role had a significantly greater responsibility in terms of student numbers and the provision of SLS services. There was a total of 6,700 students across the four Colleges, of which 3,838 were ACAP students. The base salary for the new role was $120,000, rather than the $85,000 paid to the applicant in her former role. The duties performed by the Manager, SLS would become a small part of the Head of Student Learning Support role.

[70] Based on his experience working with the applicant and his assessment of her skills and qualities since working with her from July 2013, Dr Dickson did not view the applicant as a suitable candidate for the Head of Student Learning Support. He agreed that she had attended the HSA campus in Melbourne to meet with Ms Angela Bradley, Head of School and Mr Ed Irons, Manager Student Learning Support, NCPS. This was in order for her to determine the needs for HSA and NCPS in relation to the centralisation of SLS services. However, when she returned on 27 February 2014 and he asked her if she had any thoughts, she had replied, 'Not at the moment...'.

[71] Dr Dickson believed the applicant was unable to engage in a collegial discussion about the integration process. The reports she had provided to present to the NPI Academic Board as part of the Learning and Teaching Committee, consisted of simple tallies of student attendances and lacked 'deeper analysis'. He expected a higher level of data collection and critical analysis.

[72] Dr Dickson specified the types of deeper data analysis he would have expected in the applicant's reports as including retention, pass rates, progression rates and improvements in learning. He had had to encourage the applicant to seek this data from the Registrar's office. The reports that she had provided did not provide sufficient insight into the effectiveness of the programs implemented by the SLS team.

[73] Dr Dickson also described a number of incidents which demonstrated the applicant's lack of leadership and staff management skills, including:

(a) her failure to use professional support development initiatives provided to her by Ms Delord in February 2014;

(b) her forwarding a position description in respect to recruitment to Dr Dickson prior to having that document being properly reviewed. He said this demonstrated the applicant's difficulties in managing staffing issues in her team; and

(c) her conducting a performance review in the public ACAP reception area on 28 February 2014. He had directed her to move the performance review to a private area. When he asked the applicant why she had saw it fit to conduct the performance review in a public area, she had said that the staff member had wanted a support person, which she was not willing to allow, so she decided to hold it in a public area.

[74] Dr Dickson clarified that there were specific details of the role in relation to her permission to recruit request such as salary, on costs, projected time of employment that were not provided in the applicant's documentation provided to him at the time.

[75] Dr Dickson reaffirmed his view that conducting a performance review in a public space was 'completely unacceptable'. Reviews should be conducted in a confidential and private environment. Private rooms and offices could be utilised, if necessary.

[76] Dr Dickson put his proposal for the new role to Mr Richard Arkell, Chief Strategy and Operating Officer (PEP), who was acting in Mr Little's role while he was absent in March 2014. After receiving Mr Arkell's approval, he met with Ms Driessen and the applicant on 25 March 2014 to notify her of the coming change. Dr Dickson described their conversation in the following terms:

It would be easier if you were to sit down Frances, as we have called you here today to inform you that we have decided to make your role redundant. We have decided to restructure the student support and learning services as we need to have a more strategically focussed approach across the NPI colleges. In order to do this we need to recruit a more strategically focussed and senior leader. We need a person with a high level of strategic thinking and the integration of the colleges and someone with a strong academic and scholarly background

[77] When Dr Dickson gave the applicant the position description for the Head of Student Learning Support (See: Annexure B), the following exchange ensued:

This is what the new role will look like, it requires a strong leadership skills. I don't think that your skill set is suitable for the position. HR will work with you to find a suitable alternative role within Navitas if one is available. Do you have any questions?

Hilde has that detail for you. We don't expect you to go back to your desk and work... but you can if you want to... you can take the rest of the day off.

[78] Dr Dickson believed that Ms Driessen had later discussed the applicant's redundancy entitlements and redeployment opportunities with her. A letter was provided to the applicant in these terms:

'This is to confirm the conversation we had with you Tuesday 25 March, 2014 at which time you were informed of our decision to make the position of Manager, Student Learning Support within Navitas Professional Institute redundant. We will make every effort to find an alternative role for you within the Navitas Group, but cannot guarantee that a suitable position is or will become available between now and the proposed effective date of the redundancy, which is 31 March 2014.

Should the redundancy proceed, we do not envisage that you will be required to work out your notice period. As per the Navitas redundancy policy, which we have attached for your information, you would be entitled to a redundancy payment as listed in the policy as well as any accrued and untaken annual leave.

In addition to the above payment, you would be offered access to an external outplacement service up to the value of $1,000. Further details of this service would be discussed between HR and yourself.

I would like to encourage you to contact HR should you have any questions about this letter or the policy. HR will be in contact with you in due course to discuss the next steps.'

The applicant provided an email to Dr Dickson indicating that she would continue to work at the College while she was being paid and would not be taking the afternoon off.

[79] Dr Dickson referred to a number of emails between Ms Driessen and the applicant that he was copied into between 26 and 28 March 2014. On 26 March 2014, the applicant wrote to Ms Driessen invoking the major workplace change provisions of the Award and asking that a meeting be arranged so that the changes could be explained to her and advise her of the person who would be undertaking her duties and the restructuring of SLS. She also asked that a Union official be present, noting that no-one would be available until 28 March 2014. Ms Driessen wrote to the applicant later that day and put her view that the applicant's redundancy did not constitute a major workplace change within the meaning of the Award and that the consultation period for the applicant's redundancy was ongoing. She suggested meeting at 11:00am, 11:30am or 12:00pm on 28 March 2014. On 27 March 2014, the applicant wrote to Ms Driessen in the following terms:

'Thank you for your reply. I am available for work at a similar level to the job I do now. I am willing to work at any CBD premises, and other Sydney locations that are reasonably easy to travel to from my home in Bexley.

I will get back to you re meeting times tomorrow as soon as I can.'

[80] At 8:51am on 28 March 2014, the applicant wrote to Ms Driessen to say that she had been unable to fix a time for the Union officer to attend the meeting and that, as she was not feeling well, she would not be coming into work. She intended to post her keys and swipe card. She provided her personal contact details. No meeting took place on Friday 28 March 2014.

[81] Dr Dickson said that after a discussion with Ms Driessen, a letter in the following terms was sent to the applicant on 31 March 2014:

'Following on from our letter dated March 25, 2014, this is to inform you that we have decided to now proceed with the redundancy of your role as Manager Student Learning Support with ACAP. Unfortunately, we have been unable to find a suitable alternative position for you within the Navitas Group. As such, this letter formally confirms that we will now proceed with your retrenchment. Your last day of employment with us is today, March 31, 2014. There will be no requirement for you to attend work today or to work out your one months notice period.

Arrangements have been made for your final pay to be paid to you by April 3rd, 2014. Navitas payroll is responsible for authorising the preparation and release of your final pay, including any relevant accrued and untaken leave entitlements. Please note that your access to EMO (the online Employee Manager Online payroll information system) will be cancelled following your final pay. Please ensure that you have printed off all payment advices from the system that you may need for future reference. Your final payment advice will be sent to your home address by payroll and a group certificate will be sent to you following the end of the current financial year. At your request, Human Resources can provide you with a certificate of service.

If you have purchased Navitas shares under any of the Navitas employee share plans whilst working for the Company, then we would inform ComputerShare (the Company who manage Navitas shares) that you have left the Company. They would then contact you to explain your options in relation to your Navitas shares.

If you would like to take up our offer of accessing outplacement (information has been provided previously), please contact Hilde Driessen on [number supplied].

I would like to take this opportunity to wish you all the best for the future and thank you for your contribution to ACAP.'

Dr Dickson emailed Navitas staff to inform them of the restructure and the applicant's redundancy that same day.

[82] Dr Dickson specifically noted that the applicant did not apply for the Head of Student Learning Support role once it was advertised (internally and externally) from 3 April 2014. Five candidates were interviewed by a panel, including Dr Dickson, and the successful candidate was selected in May 2014. She was successful due to her extensive and targeted academic qualifications, significant work experience in a private education provider and positive references, particularly in relation to leadership skills.

[83] In oral evidence, Dr Dickson disputed that the following responsibilities were part of the applicant's role as Manager, Student Learning Services:

• development and implementation of policy proposals that align with overall organisation policy and enhance, streamline and systematise student learning support; and

• undertaking applied research and scholarly activities to inform the department's initiatives and practice.

Nor was it true to say that the difference in student numbers between the applicant's role and the new role was 20%. The difference was much more substantial than that figure. The new role also required liaison with Heads of School, Regional Directors and General Managers, which was not being performed, in any substantial sense, by the applicant in her role as Manager, SLS.

[84] Dr Dickson denied that Navitas had 'gone through the motions' in attempting to redeploy the applicant. He rejected the applicant's view that her redundancy was a 'sham' as the new job was substantially different in terms of diversity, level of responsibility, salary, level of strategic thinking and integration.

[85] Dr Dickson stated that the discussion he had with the applicant after her return from Melbourne on 26 or 27 February 2014 was not an informal or casual exchange. He had not had any discussion with the applicant subsequent to this conversation as to any ideas she had in relation to the integration of SLS services.

[86] Dr Dickson said that after he had requested the meeting on 25 March 2014, there had been no indication from the applicant that she intended to attend. He had made a phone call requesting she do so. She replied that she was busy. However, he maintained management's right to insist that the meeting take place. He could not recall saying that it would take 'six or eight minutes' and suggested that this was not the sort of language he would use. He agreed that the applicant was polite and businesslike throughout that meeting.

[87] In cross examination, Dr Dickson agreed that he had not been unhappy with the applicant during the time she had reported to him. But it did not follow that she was suitable for the new, more senior position.

[88] Dr Dickson was referred to the position description for Manager, Student Learning Support. He did not believe that the applicant's role required strategic planning skills. While the applicant's role involved developing policy proposals, this work could be reactive, rather than analytical. Dr Dickson agreed that undertaking applied research and scholarly activities formed part of the duties in both the applicant's role and the new role. Collaboration with academic staff could include people like Heads of School. Dr Dickson had been of the view that the applicant had needed to be encouraged to engage in this aspect of her role. He could not see why the applicant would have needed to liaise with Regional Directors in her time in the role.

[89] Dr Dickson identified specific differences between the two roles. The latter role had a particular reference to the diversity of students and their courses across NPI Colleges. He acknowledged that the applicant had experience in Colleges which ran short courses and Masters courses, although noted that during the applicant's period of employment, ACAP did not undertake short courses.

[90] Dr Dickson explained that he had never sat down and discussed requirements for the strategic and high level functions of the new role with the applicant after her trip to Melbourne, as there was already a plan to change the role to a higher level position, following consultation and discussions with Mr Little, Mr Arkell and Ms Driessen. He did not believe that the applicant was capable of providing services that were the most beneficial for students. He gave the example of an overseer provider that reviewed students' assignments for structure and grammatical accuracy. He had felt that this was a student learning service function and the applicant had maintained that it should stay in the technology side of the business. He was not aware of discussions between the applicant and Ms Spies in relation to this provider.

[91] Dr Dickson disagreed that the applicant had been denied an opportunity to have a 'collegial discussion' with him in relation to the integration process after her return from Melbourne. She could have raised it with him at any time. He could not recall the timeframe of his leave around this time, although the applicant put to him that he was on leave from 1 to 24 March.

[92] Dr Dickson said that he had not been able to make a full assessment of the applicant's capacity in the short period he had been her manager, although he thought that on some occasions, her judgement and initiative were lacking. As he was conceptualising the new role, he had begun to form the opinion that it was beyond her capabilities.

[93] Dr Dickson was referred to a report prepared by the applicant in relation to the contribution of SLS to the Academic Board meeting. He maintained his view that her report lacked the level of analysis he had expected. He denied that he had not sought this level of analysis from the applicant. When he had referred the applicant to the Deputy Registrar and the types of retention statistics, he was using this as an example; he would have spoken about other types of impacts as well. His understanding was that her previous supervisor had to push the applicant to provide appropriate detail for these meetings.

[94] Dr Dickson was also referred to a report prepared under the applicant's leadership, relating to the impact of the implementation of the Peer Assisted Study Sessions (PASS) program. His view was that it lacked pre-test results, but it was a comparison of marks of those who had attended, as opposed to those who did not. The report was not useful or meaningful. He could not recall telling the applicant that the report was 'incredibly detailed'. He had told the applicant that 'deeper analysis' was required.

[95] Dr Dickson explained that he viewed the recruitment email the applicant had sent to him on 20 February 2014, as demonstrative of her limitations. He had believed she would provide him with documentation that he would be able to forward for approval. Dr Dickson said that in his role as Dean over the last three years, he had nine staff who reported to him and he had recruited two who reported directly to him. The documents that would be required to recruit someone would include a position description and a request to recruit, which would outline background information and financial implications. In this case, the request to recruit documentation was incomplete. He could not recall if the complete documentation had come through later that day. He did not think that this material should have needed his review prior to completion. He did not think that this represented a difficulty of the applicant to meet deadlines, rather it demonstrated a difficulty with her following his instructions.

[96] Dr Dickson understood that there had been changes to academic skills workshops for students under the applicant's leadership. However, his expectation was that there would have been ongoing evaluation of these workshops. He could not say what the state of these workshops was, prior to the changes implemented by the applicant.

[97] Dr Dickson was referred to the following statement in the Form F3 Employer's Response:

'During this time there has been little or no evidence of innovation and growth in the services provided initiated by Ms Bertrand.'

While he could not say who wrote this statement, he suspected that 'innovation' related to the nature of the SLS programs not being particularly innovative, notwithstanding that they were new. Having a generic SLS website was not innovative - it was a basic expectation. The initiative of having eight subjects delivered online and on campus had not come from the applicant, but from himself.

[98] Dr Dickson denied that he was 'annoyed' or had viewed the applicant as disloyal when she wore a Union lapel pin at work.

[99] Dr Dickson was not aware of any changes that the applicant had brought to SLS services prior to September 2013. He was aware of program and staffing changes which were brought to his attention in reports from Ms Spies, but not whether these changes had been led by the applicant. He did not know whether the applicant had led the change in implementing a website at the beginning of 2013 and, in any event, it was not a specific online support service. The expansion in webinars had resulted in a small uptake by students, but had not been well publicised. The focus on online services needed to be stronger. He rejected a proposition that it would have been illogical for anyone else to lead online services and noted that Ms Spies had a learning technology background.

[100] Dr Dickson agreed that the applicant's team had two or three persons in Sydney, one in Melbourne and one in Brisbane. He was aware that the applicant's team would occasionally provide workshops in Brisbane. He agreed that her leadership role had some impact on other states and that both her role and the Head of Student Learning Services reported directly to him. He drew a distinction between asking the applicant for ideas on how SLS services could be extended across other Colleges and the applicant actually managing SLS services for the Colleges.

[101] Dr Dickson noted that there was a significant need for English language proficiency programs to be rolled out across NPI. This was not discussed with the applicant because he did not believe she had the capacity to perform to the level of liaison and consultation required for the 'roll out' and integration of that kind of program. Towards the end of her tenure, he had addressed her level of consultative and liaison skills with her, particularly in regard to her relationship with her staff. He denied that she had had regular conversations with Heads of School about the learning needs of their students. He believed these skills were just a natural part of a manager's job.

[102] Dr Dickson could not recall whether he had raised any concerns with the applicant in relation to her abilities in meetings on 24 January or 5 February 2014. He had many meetings with numerous staff. The applicant may have been asked to change her KPIs to an NPI focus on the internal system in her personal performance review on 25 February 2014. This was consistent with what the applicant was doing at the time. In the context of an understanding that SLS services needed to be extended, the applicant was the person to make the initial steps. At that point, he had expected the applicant would have been the person to do that, but the role was later conceptualised to a more senior management role.

[103] Dr Dickson denied that he was planning for the applicant to extend SLS services, without any increase in salary. He would have formed the opinion that the applicant was unsuitable for the newly conceptualised role, some time before the meeting with Mr Little on 27 February 2014.

[104] Dr Dickson said that the duties of the applicant's former role, did not include significant resource allocation, in contrast to what was required for the new Head of Student Learning Services' role. He had not asked the applicant about her experience prior to working for Navitas as it was not relevant; she had not previously managed or had responsibility for SLS services for over 6,000 students. Management of SLS services across all Colleges would have involved supervising increasing numbers of staff. He was aware of leadership issues with the applicant raised by Ms Spies, but he could not speak for her. The differences in the roles could be seen as differences of scale, dealing with higher student numbers. The nature of the programs across the Colleges was vastly different to what the applicant had previously managed.

[105] Dr Dickson acknowledged that the references to research and scholarly activities in both position descriptions were similar, but said that he had never seen any real evidence of these skills being exercised in the applicant's role. Her organisation and recording of a seminar could be considered low level scholarly activity.

[106] Dr Dickson had that he expected the successful candidate in the new role to have a PhD or equivalent work experience. He clarified equivalent work experience as being one which demonstrated a high level of analytical understanding. While the successful candidate did not have a PhD, she had undertaken research reflecting the impact of projects initiated during her tenure in a previous role. He had not asked the applicant about her research, but noted again that he had raised a need for deeper analysis in the applicant's reports. He did not consider the applicant's Masters degree as a research based degree.

[107] Dr Dickson was asked to set out the nature of the consultation he had engaged in with Mr Little, Mr Arkell and Ms Driessen in relation to the new role. He had discussions with Mr Little about restructuring the SLS Team. He agreed that he was on leave for the first two weeks of March and that he was on duty for the following week, albeit that he was in Singapore to seek opportunities for Navitas. While he acknowledged that he had consulted with Mr Arkell in March and that he had previously given evidence that he had told Mr Little that the applicant was unsuitable for the new role in February, he noted that Mr Arkell was acting in Mr Little's place. As he could not act unilaterally, he had consulted with Mr Arkell as to the formalities of the redundancy.

[108] Dr Dickson said that Ms Ellen Cooper, the successful candidate for the new role had been involved in SLS services for some time and had a history in education and online delivery. He could not be more specific without the details of her CV before him. However, he believed she had over five years experience at the Australian College of Physical Education (ACPE), where she was Head of Student Learning Support. He believed that she had a Masters degree in online education, and a Bachelor or Graduate Diploma in Education. He disagreed that she had no other significant management experience, aside from those five years at ACPE. In any event, a panel of three persons had come to the same conclusion that she was sufficiently qualified. He could not say whether Ms Cooper's experience in educational management was limited to one college on one campus, with a total of 800-900 enrolled students. He rejected the assertion that she did not have work experience equivalent to a PhD. He understood that she had been successful in achieving academic outcomes in relation to pass rates and retention and she had been able to utilise these skills to further develop SLS services.

[109] Dr Dickson maintained that the new role involved an increase from 3,700 to 6,700 students, although he conceded that he had not brought documents to corroborate this figure. He said he had received these figures from the office of the Registrar. He denied that the figures were incorrect. A list of students, retained by the applicant after her employment ceased, did not fully capture the number of first year students who enrolled at the beginning of 2014.

[110] Dr Dickson provided an example of what he regarded as the applicant's deficiencies in liaising with staff. The applicant had contacted a staff member's daughter because she believed that the staff member had provided her daughter with an inappropriate level of assistance. Without identifying herself, the applicant had asked inappropriate questions of the daughter. Dr Dickson denied assertions by the applicant that the staff member's allegations had not been put to her. He maintained that the applicant's conduct was inappropriate, in spite of her strong protestations, and stated that she should have directly approached the staff member, not her daughter. Another example of the applicant's deficiencies arose from her conducting a performance review in a public area.

[111] Dr Dickson agreed he had met with Ms Parker and Ms Driessen in February 2014, due to an issue raised by the applicant in relation to Ms Parker's performance. Ms Parker had raised concerns about the applicant contacting her daughter. Dr Dickson agreed that the meeting discussed the appropriateness of the applicant's action and that Ms Parker had initiated the meeting. Dr Dickson was referred to a document prepared by the applicant said to be a record of a meeting between the applicant and Ms Parker on 5 February 2014, but with added notes from Ms Parker. It was expressed, in part, as follows:

'Jacqui's error of judgement to correct her daughter's essays without telling anyone the student was her daughter. I gave analogy of a teacher in a school who coached her daughter at school during work hours. It gives a very bad impression to anyone who might know about it.'

Ms Parker had added the following note to this comment:

'Comment [JP3]: I explained that this had not been done surreptitiously. I also agreed that it could be seen as conflict of interest and I would not do such a thing again. I asked Frances if she had contacted my daughter in December at her work under the guise of an enrolment officer or admin staff checking on why she hadn't enrolled for next term. She said yes she had because she wanted to check that she was my daughter. I explained that I would have had no qualms in telling her she was had she just asked me. She complained that my daughter had lied to her when Frances had asked her if she had a young child and said no.'

[112] Dr Dickson said he had not contacted Ms Parker's daughter to confirm what had taken place. Rather, he had formed his view after speaking with Ms Parker and the applicant. The applicant had acknowledged contacting Ms Parker's daughter and they had discussed the reasons why she had done so. He had not asked what was specifically said, but believed he had asked the applicant if she had contacted Ms Parker's daughter, without identifying herself. The meeting with Ms Parker had been only about this issue, although he acknowledged that she had raised other issues. He viewed the other issues raised by Ms Parker as minor, though he described Ms Parker's allegation that the applicant had 'spent at least 30 minutes explaining that she wanted me to leave', as concerning. He had not had an opportunity to investigate this claim. This issue had not arisen under the grievance procedure, it had arisen informally. He could not recall the other complaints made about the applicant.

[113] At this point, the applicant attempted to cross examine Dr Dickson on the emails between Ms Parker and another employee, Ms Gregory. After again being directed by the Commission to reveal how she had come into possession of the emails, she again refused on the grounds self-incrimination. As the applicant refused to reveal the provenance of those emails, she was not permitted to adduce them into evidence. In any event, I note that there would be little relevance in questioning Dr Dickson on emails between other persons.

[114] Dr Dickson stated that the applicant's initial refusal to attend a meeting on 25 March 2014 did not inform his adverse views of her. He did not have any criticisms in relation to her attendances at meetings. He agreed that the applicant had sent an email at 11:12am setting out that she was 'frantically busy' and that she would not be able to attend. However, the applicant would still have been required to attend the meeting.

[115] Dr Dickson said that the applicant had been offered an opportunity to meet after the meeting on 25 March 2015 to discuss the restructure's impact on her, but she had been unable to meet for various reasons. As a result, there was no opportunity to discuss the changes with her. He did not respond to an email sent to Ms Driessen, because Ms Driessen was managing the redundancy process. He could not recall whether he had made the decision as to whether the applicant should serve her notice. In any event, allegations of email hacking would have weighed against the applicant working out her notice.

[116] Dr Dickson could not recall discussions with Ms Spies about the applicant. He said that, 'as a new employee coming under my wing, it's a clean slate and I would form my own judgements.' He believed that staff would respond differently to conflicting management styles. Issues between a specific manager and a staff member may be as a result of differing personalities. He was unaware of the extra reporting requirements Ms Spies had requested of the applicant. He had asked her to deal with the 'Smart Thinking' SLS tool and did not think that this represented extra onerous reporting requirements. Dr Dickson was shown a copy of this report. He described it as far too detailed. He had discussed streamlining this material. Dr Dickson expressly rejected a suggestion that there had been a conscious plan to overburden the applicant to discredit or demoralise her.

[117] Dr Dickson agreed with the proposition that the decision to retrench someone should be exercised with care. Management should ensure that the person was unable to fulfil the new role before making a decision. However, he noted that performance reviews were made against a position that that person already held. Judgements of suitability for a new position would be made according to an assessment of someone's capacities, either from formalised assessment or from observations over a period of time. He had considered what the applicant's capacities were at the time and had not considered the applicant's experience prior to her employment at Navitas. The applicant would have been welcome to apply for the new role, if she thought that she was qualified. He conceded that he had not mentioned this to her. He had already started to form a view of the applicant's capabilities prior to the complaint by Ms Parker and acknowledged that the complaint was not helpful. He had already made the decision, but the complaint confirmed his thinking.

[118] In re-examination, Dr Dickson said that the Head of Student Learning Services represented a structural response to the number of Colleges captured by SLS. It would not merely be a matter of 'rolling out' services to the Colleges which did not currently have SLS services. It would require a significant relational task. There was a need to expand across the Colleges, while recognising nuances that exist between them. It was transitional and this transition would continue, over time, with a different focus.

[119] Dr Dickson reiterated that the level of strategic and analytical thinking that was required in the new role was greater than that in the applicant's former role. He believed that the time between September 2013 and March 2014, during which he had supervised the applicant, was sufficient to determine her leadership qualities.

[120] Dr Dickson agreed that he had been part of setting up a meeting with the applicant on 25 March 2014. The meeting was intended to advise the applicant that the redundancy was to be enacted and to give Ms Driessen an opportunity to clarify any points or questions the applicant may have had. The applicant had not asked any questions.

[121] Ms Driessen had been employed by Navitas as a Human Resources Manager since July 2008. As a result of the merger of the Navitas Professional division and the Navitas English division in July 2013, she was employed as Human Resources Manager, Navitas Professional & English Programs (NPEP) until May 2014.

[122] In her written statement, Ms Driessen confirmed that the applicant was employed as Manager, Student Learning Support for ACAP from June 2012, until being made redundant on 31 March 2014. She explained that the role of the SLS team was to offer academic support to students, including the provision of one-on-one sessions and seminars focussing on academic skills. The applicant had only been responsible for the provision of SLS services for ACAP. Ms Driessen explained that prior to the restructure in September 2013, the different Colleges had separate and different levels of SLS services available to their students. The applicant reported to Ms Spies prior to September 2013, as SLS services at that time came under the Learning, Teaching and Technology Services Team.

[123] Ms Driessen set out a number of conversations she had had with Ms Spies and Dr Dickson about the provision of SLS services. Some time in September 2013, Ms Spies had spoken to her about SLS services coming under Dr Dickson's purview. She asked for advice on the appropriate process from a HR perspective. Ms Driessen had said that Dr Dickson would need to agree and approval would need to be sought from Mr Little. The applicant would also need to be given 'some context' about the decision. An email from Ms Spies to the applicant on 13 September 2013 was expressed as follows:

I am writing to let you know that, commencing Monday 23rd September, your position will have a new reporting line to the NPI Dean, Dr Scott Dickson. Human Resources will update your position description and make any other changes required in the systems and contract and will liaise with you about this.

Of course, I would be very happy to talk with you about this change, in terms of the rationale etc. and am free next Monday 16th up until 12pm, or later in the week if you'd like to check my calendar and send a meeting request.'

Ms Driessen forwarded this email to Ms Rosemary Hans, Human Resources Coordinator, Navitas PEP with the notation: 'FYI and preparation of variation letter, please.'

[124] Annexed to Ms Driessen's statement was a copy of a letter dated 16 September 2013 from Ms Spies to the applicant, setting out her reporting changes, with an attached position description, which noted that 'All other terms and conditions of your employment will remain the same.'

[125] Ms Driessen understood from comments made by Dr Dickson during a number of conversations in late 2013, that he was of the view that the management of SLS services throughout the merged Colleges, should come under the purview of a much broader and more senior position than the applicant's role. In March 2014, she and Dr Dickson had put a proposal along these lines to Mr Arkell, who was standing in for Mr Little, while he was on leave. In the evening, after putting the proposal to Mr Arkell, she and Dr Dickson had been informed that Ms Lyndell Fraser, Chief Executive Officer, Navitas PEP had granted approval to integrate SLS services across NPI Colleges through the creation of the new Head of Student Learning Services role. This resulted in the Manager, Student Learning Support, ACAP being redundant.

[126] Although Ms Driessen emphasised that the decision that the applicant was not qualified for the new role was made by Dr Dickson, she believed that the applicant did not have the skills and experience required to perform the more senior strategic role. She based this view on the applicant's resum�; her understanding of the applicant's existing role; the skills and experience that would be required for the successful candidate in the new role; and her experience with the applicant in her capacity as Human Resource Manager.

[127] Ms Driessen referred to feedback from Ms Spies in the applicant's mid-year performance review for the 2013 financial year. Ms Spies believed that the applicant required 'further development in team leadership skills', including by way of 'leadership coaching, mentoring and/or training; EQ training/development; interpersonal skills development; 180/360 tools.' The applicant provided feedback on this review as follows:

'I believe that there is no evidence for the statements that my team leadership needs improvement, or that my interpersonal skills are insufficient, and I have a long and strong track record in this area. Therefore, I cannot agree to be singled out for leadership coaching, mentoring or training on this basis. I cannot agree to being appraised by peers and subordinates when this is not the general practice at ACAP or Navitas Professional. I believe that this would lead to a 'fishing expedition' to find anonymous and negative feedback, with which to further undermine me and chip away at my morale.'

[128] Ms Driessen said that after the approval of the redundancy of the applicant's position, she was asked to attend a meeting on 25 March 2014 with Dr Dickson and herself. As the applicant was running late, Dr Dickson called her. Dr Dickson told Ms Driessen that the applicant had said that she did not have time to attend. However, Dr Dickson told her that her attendance was important and she did so. When she arrived, she appeared to be agitated and kept her back to the door when she entered the room. A conversation to the following effect took place:

Frances we need to talk to you, it would be easier if you sit down.

No. I don't have time for this and I don't want to sit down.

Frances, the decision has been made to make your role redundant because we need a much more strategically focussed approach to SLS services and this role needs a more senior leader. We are going to recruit a new Head of SLS for across all of NPI. We have assessed that you do not have the skills or qualifications for this position. HR will work with you to try and find you an alternative position, if possible. Do you have any questions?

At the end of the week. You can take the rest of the day off if you like.

Okay. Then when you go back to your desk have a think about this. This is where the consultation period starts the time for you to ask questions and get advice. We have also started exploring redeployment options within the Navitas group and we will work with you to establish if we would be able to find a comparable alternative position. We are also in the process of preparing an estimated calculation which will list your entitlements should we be unable to offer you an alternative role. I will send the calculation to you ASAP. Either way, Scott and I would like to meet with you again on Thursday.

[129] Ms Driessen had told the applicant that she would be in touch with her as to the redundancy calculations and handed her a copy of the Employee Assistance Program flyer, the Navitas Policy and Procedures for Redundancy and a letter signed by Mr Arkell.

[130] Shortly thereafter, Ms Driessen directed Ms Hans to search the Navitas Group intranet for available positions and sent an email to all HR Managers in the Navitas Group to check if there were any pending vacancies, which had not yet been advertised. Ms Hans sent this email at 10:18am on 26 March 2014 and a copy of the email was annexed to Ms Driessen's statement. Later that morning, Ms Driessen sent an email to the applicant to ask if she had any questions. She let her know that HR was exploring possible alternative employment for her and was seeking her feedback on this point. The applicant provided a response in the early afternoon. Ms Driessen responded in the early evening and reiterated that the consultation period had commenced and that a final decision was to be made at the end of the week. Ms Driessen gave the times of 11:00am, 11:30am or 12:00pm as available for a meeting. The applicant responded on the morning of 28 March 2014, indicating that she would send in her swipe card and keys.

[131] Ms Driessen noted that the applicant took personal leave on 28 March 2014. She sent an email to the applicant that day which said, in part:

'At this stage the College intends to proceed with the redundancy effective Monday March 31, 2014. Should you feel that there is a pressing reason for us not to proceed, we ask you to indicate this no later than 12noon on March 31, 2014 so that we can consider this response before proceeding.

We continue to explore possible comparable roles for you at Navitas and any suitable roles identified by Monday 31, 2014 [sic] will be discussed with you for further review and consideration. If we will be unable [sic] to find a suitable role however, we intend to proceed with your retrenchment on Monday.'

[132] Ms Driessen described the two roles Ms Hans had found as being vacant within the Navitas Group. The first was a casual relief teaching position in NPEP (which was not at an appropriate or similar level to the applicant's now redundant role) and the other was a Student Support and Library Officer position with SAE Institute located in Oxford (which was obviously geographically inappropriate). Ms Driessen concluded that there were no other suitable redeployment opportunities for the applicant.

[133] Ms Driessen referred to the applicant's final payslip and a tax invoice sent to Navitas from an outplacement services provider. This disclosed that the applicant had been paid a total of $16,376.61 net, comprising of gross payments of $3,933.83 (accrued annual leave), $7,142.32 (redundancy) and $6,538 (in lieu of notice). The outplacement services for the applicant were invoiced at $605.

[134] Ms Driessen stated that the new role was advertised internally and externally from 3 April 2014. She was not involved in the recruitment process, other than being copied in on an email sent by Ms Hans to NPEP staff.

[135] In cross examination, Ms Driessen agreed she had attended a meeting with Ms Parker and Dr Dickson on 27 February 2014 which dealt with performance issues raised between the applicant and Ms Parker. However, the bulk of the meeting was devoted to the issue of the applicant, without identifying herself, contacting Ms Parker's daughter. Ms Parker had told Dr Dickson and Ms Driessen that an employee of ACAP had contacted her daughter about enrolments at ACAP. Ms Parker believed that this person was the applicant. The issue was then discussed with the applicant. Ms Driessen repeatedly insisted that these allegations had been put to the applicant in the meeting on 27 February 2014. Both Ms Driessen and Dr Dickson had told the applicant that it would have been more appropriate to approach Ms Parker first. The applicant had said words to the effect of, 'I needed to know', which Ms Driessen took as an admission that the applicant had indeed called Ms Parker's daughter.

[136] Ms Driessen also recalled that at the end of this conversation, Dr Dickson and the applicant discussed the next steps in relation to managing Ms Parker's performance. Dr Dickson asked the applicant to think about how best to address these issues. They had not discussed the specifics as to the criticisms Ms Parker had made as to the applicant's performance management techniques. Ms Driessen stressed that the main concern in the meeting related to the applicant contacting Ms Parker's daughter.

[137] Ms Driessen had not been aware that the applicant travelled to Melbourne in late February 2014 to meet with NCPS and HSA personnel.

[138] Ms Driessen clarified that her evidence in relation to the SLS team referred to the work of the team and was not specifically meant to encapsulate the applicant's position.

[139] Ms Driessen repeated that the determination of whether the applicant was suitable for, or had the requisite qualifications for the new role had not been made by her. However, her own view was that the applicant's resum� did not disclose that she had devised and implemented strategies at a leadership level. Nor did her role as Manager, SLS Services (ACAP). She could obviously not comment on what was not in the applicant's resum�.

[140] Ms Driessen acknowledged that she did not have experience as a teacher, tutor or lecturer at post-secondary level, but she did have facilitator experience at post-secondary level. She had never been responsible for the quality of teaching and learning in a college and had never directly supervised educational staff. She had not developed strategies for enhancement of learning and teaching or researched changes in the field of learning, teaching and academic support. Nevertheless, she maintained her view that the applicant was not a suitable candidate for the new role. Her view was based on the applicant's management, leadership and supervisory skills.

[141] Ms Driessen conceded that the conversations she had had with Ms Spies regarding the applicant had negatively influenced her view of the applicant. Ms Spies had raised concerns about the applicant's 'autocratic' style of leadership and lack of openness to new ideas. She recalled Ms Spies reading feedback to her from members of the SLS team verbatim, but could not recall the exact words. Ms Driessen agreed she had attended a meeting with the applicant, Ms Spies and Mr Howe of the NTEU at some time in March or April 2013. She recalled the applicant asking Ms Spies when she had displayed the characteristics of an autocratic style of leadership and a lack of openness to new ideas. Ms Spies had responded by saying, 'In each and every meeting.'

[142] Ms Driessen conceded that the applicant had asked Ms Spies about whether the anonymous complainants had set out what she had done or said, and she had said, 'No.' She shared Ms Spies' view that the applicant's desire to determine exactly who had given such feedback, was inappropriate. In any event, she did not agree that Ms Spies had been 'critical'. She was passing on feedback, as was appropriate in a managerial role and was expressing views put by all members within the wider SLS team.

[143] Ms Driessen emphasised that while Ms Spies had sought her advice as to whether it was lawful and permissible not to award the applicant a pay increase for the year 2012-2013, the decision as to whether to award a salary increase was not one for her to make.

[144] Ms Driessen confirmed her evidence as to the applicant's attendance at the meeting of 27 March 2014. She agreed that the applicant had been business-like, but not that she had been polite. Her refusal to sit was impolite in view of the fact that both she and Dr Dickson had asked her to sit. The conversation was shorter than what had been anticipated because the applicant was not willing to engage. This was reflected in the applicant stating that she did not have time to meet and to her standing with her back to the door. Her negative body language indicated that she did not want to be there. She repeated her description of the applicant as being 'agitated' and distinguished this from 'jittery'.

[145] Ms Driessen denied having advised Dr Dickson to keep this meeting with the applicant short. She and Dr Dickson had liaised to determine the three suggested appropriate times on Friday 28 March 2014.

[146] Ms Driessen refuted the proposition that no-one had properly considered the applicant's suitability for other positions. When asked as to why the applicant had not been asked to serve her notice period, Ms Driessen replied that in her experience, it was not unusual for employees, who have been made redundant, not to serve their notice period. She denied that it was to ensure that other positions could not be offered to her. In any event, the decision on this matter was Dr Dickson's.

[147] Ms Driessen denied that it was 'obvious' that the applicant was waiting on her Union's availability to arrange a meeting. In fact, the applicant's stated intention to return her keys and swipe card indicated that she no longer wanted to participate in any conversations and that she was accepting matters as they were. The applicant had been advised that if she contacted the respondent to advise that there was a reason for Navitas not to proceed, she should do so by midday 31 March 2014. She and Dr Dickson had formed the view that the applicant did not want to take any further opportunities to consult after this time. Ms Driessen was unaware that the applicant had attended work on Monday 31 March 2014.

[148] The applicant provided two sets of written submissions prior to the hearing of the application. The first addressed the jurisdictional objection that the applicant's dismissal was a 'genuine redundancy' (received by the Commission on 7 July 2014). The other addressed the substantive merits of the applicant's case. At the close of the evidentiary proceedings, the parties consented to final submissions being reduced to writing and further directions were issued for the parties to file final submissions. The applicant filed her final submissions on 15 January 2015. I summarise all of these submissions below. I also note that the applicant sought leave to provide further submissions on the issue of her credibility. As I was of the view that the applicant was very much on notice of this matter prior to this time, I declined the request and will elaborate on my reasons later.

[149] The applicant submitted that the evidence disclosed that there were 'tensions and disagreements' between herself and Ms Spies in the last year of her employment, including negative feedback from Ms Spies, the imposition of onerous reporting requirements by her and the refusal of a salary increase (and a confirmation of that refusal).

[150] The applicant referred to the definition of 'genuine redundancy' in s 389 of the Act and noted that the respondent bore the onus of proof in establishing that her termination was a 'genuine redundancy'. The Commission should draw the conclusion that the redundancy was a 'sham' engaged in when the steps the respondent had taken to force the applicant to leave, were unsuccessful. She was dismissed five days later. This was not a 'genuine redundancy'. Her case could be distinguished from Ulan Coal Mines Limited v Honeysett & Others [2010] FWAFB 7578 ('Ulan Coal v Honeysett'), as the applicant could perform the duties of the new role.

[151] The applicant claimed that the email of 7 June 2013 from Ms Spies demonstrated that the extra reporting requirements for her were 'extremely onerous'. It was not true to say that she had trouble meeting reasonable report requests. The respondent had not sought to call Ms Spies as a witness. The Commission should draw an inference that her requests were unreasonable. Additionally, while Dr Dickson had denied that the 'Smart thinking report' was onerous, after it had been shown to him, his view was that it should be 'streamlined'. Dr Dickson had not been consistent as to what Ms Spies had said to him about the applicant. The evidence of Ms Driessen showed that Ms Spies had relayed complaints, but had not asked the complainants about specific incidents. Ms Driessen's evidence on this point was argumentative, contradictory, unfair and inaccurate.

[152] The applicant claimed that the respondent's failure to award her a pay increase for the financial year 2012-2013 was related to the subsequent decision of the respondent to terminate her employment, six months later. Ms Driessen's evidence supported a conclusion that Ms Spies had made the decision not to award the applicant a pay increase. A reasonable employer who is not unhappy with its employee would normally grant a pay increment in line with inflation. The respondent had failed to call Ms Spies to support its submissions on these issues and the Commission should therefore draw adverse inferences.

[153] The applicant referred to Dr Dickson's evidence that he was not unhappy with her as a Manager and contrasted this with his view that she had significant performance and leadership issues. He then qualified this by saying that her judgement and initiative were insufficient for the new role. If he had not been unhappy with her, he should have taken greater care, before deciding that her position was redundant. Dr Dickson's evidence as to whether he had fully considered the applicant's skills and experience, was contradictory. He had failed to consider her experience, prior to working for the respondent, and relied on the 'spurious explanation' that she had not previously managed over 6,000 students. Dr Dickson's decision to make her redundant could not be considered to be reasonable.

[154] The applicant claimed that the cross examination of her had not exposed any flaws in her evidence. Her evidence should be preferred to that of Dr Dickson or Ms Driessen. She noted that the respondent's solicitors had written to her stating that they intended to attack her credibility. She strenuously rejected the respondent's characterisation of her credit.

[155] On the other hand, the applicant repeatedly described Dr Dickson as a vague, unreliable and inconsistent witness and his evidence as 'post-facto'. She also suggested that his use of phrases, such as, 'I would contend that' and 'I would suggest' were improper for a witness and more fitting for an advocate. He was unduly defensive. The criticisms he now made of her were not evidenced in her previous performance reviews. The applicant put that Dr Dickson's evidence should be seen in the context of him being forced to defend his own judgement and decisions after the event. He was not an impartial witness and his evidence should not be relied on by the Commission.

[156] The applicant disputed Dr Dickson's evidence that her role was specific to ACAP. When confronted with an email in which he said that he wanted her role to have an 'NPI focus', Dr Dickson had attempted to characterise this part of her role as being 'in its embryonic form'. He had also asked the applicant to draw a position paper on extending SLS services throughout NPI Colleges and had sent her to Melbourne to liaise with NPI personnel there. His evidence was inconsistent on the point of whether there had been a debrief meeting after her visit to Melbourne.

[157] The applicant referred to Dr Dickson's evidence about his decision that the applicant should be made redundant. He had partly based this on the 'meeting' of 27 February 2014, which was no real meeting and there had been no debrief. The notes to which he referred in relation to his meeting with Mr Little when he said the decision was made to create the new position, did not disclose his reasoning. His statements that he sought a 'more strategically focused approach' for the candidate in the new role, were too vague to be helpful. The letters of 25 and 31 March 2014 do not disclose reasons for the redundancy. The absence of contemporaneous reasons was relevant; See: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 ('NTEU v RMIT').

[158] Dr Dickson had also said that he had partially based his decision on discussions with Ms DeLord. This evidence was hearsay and there was no basis for Ms DeLord to have made such comments. Even if she had, Dr Dickson should have attempted to find out whether what Ms DeLord had said was correct. Dr Dickson was not entitled to form the view that she had trouble meeting deadlines on the basis of the email she had sent to him relating to recruitment. In any event, the completed form was sent later that day.

[159] The applicant said that even if she had applied for the new position, she would not have been successful. This proposition was supported by Dr Dickson's evidence. He did not regard her as suitable for the new position.

[160] While the applicant admitted her decision to conduct a performance review in a public hallway was a 'mistake', she said that the fact that there were few people around mitigated its seriousness. She repeated that the performance review had to be completed that day and the employee in question had refused to conduct it in private, without a support person present.

[161] The applicant noted that the source of Dr Dickson's information that she had contacted Ms Parker's daughter, without identifying herself, was Ms Parker herself, who was not herself a party to that conversation. Nevertheless, Dr Dickson had asserted that the applicant had not identified herself in that conversation. The applicant submitted that her email after the meeting provided a more reliable account. It was unclear if Ms Driessen or Dr Dickson had positively asked the applicant if she had identified herself in the course of the phone call. They had improperly relied on Ms Parker's account.

[162] The applicant claimed that Ms Driessen and Dr Dickson had been unable to identify any 'major blunders of consequence' on her part. Dr Dickson did not have sufficient grounds to conclude that she was unsuitable for the new position and he had certainly not raised them at the time. The criticisms in his evidence did not sit comfortably with a finding that her dismissal was a 'genuine redundancy'. The applicant denied the respondent's criticisms of her performance, which were inconsistent with a finding that she had been made redundant. An employer cannot dismiss an employee it has problems with, and then maintain it was a 'genuine redundancy'; See: NTEU v RMIT.

[163] The applicant noted that Dr Dickson had not been made redundant after the responsibilities of his role increased after the restructure in 2013. She queried why she would be made redundant in similar circumstances. In order to be satisfied that this was a 'genuine redundancy', the Commission would need to establish that the new position was really a new role. The evidence suggested that there were hardly any differences at all between the two roles. She had given evidence that the new role would involve supervision over approximately 20% more students. Dr Dickson had suggested that there were 6,700 students across NPI and that 3,800 of these were from ACAP. However, he had not presented any corroborative documentary evidence. He did not raise any major dispute with the figures she had provided.

[164] The applicant repeatedly described Dr Dickson's evidence as to the difference between the two roles as 'vague'. She noted that he had admitted that her focus had changed to a NPI focus, although she had not assumed any management control outside of ACAP. She acknowledged that he had 'vaguely' criticised her consultation and liaison skills. He had not been able to explain why a PhD or equivalent experience was desirable in relation to the new role. Nor had he properly explained what equivalent work experience to a PhD would entail.

[165] The applicant listed the following similarities between the two roles admitted by Dr Dickson, being that both positions:

e) involve liaising with academic and non-academic staff;

f) involve assessing and responding to diverse and changing student needs for academic support;

g) involve initiating and developing services that cater for all student needs whether they are studying on-line, through blended learning or on campus;\

h) involve undertaking applied or action research and scholarly activity on learning activities in higher education that will inform innovative and improved practice in the area of learning assistance;

i) involve analysing, assessing and reporting on the effectiveness of SLS outcomes and continuous improvement;

j) include interaction with external stakeholders, such as industry peers and representing the employers at forums, such as conferences; and

k) involve creating policy proposals and develop and implement effective policies for student learning support.

[166] The applicant submitted that the respondent had not established that the two roles were substantially different or that she was not capable of fulfilling the new role (particularly by failing to have regard for her research background) or that she was incapable for performing the duties of the new role. Moreover, Ms Driessen's opinions ought not satisfy the Commission in this regard, because of her lack of qualifications in the field.

[167] The applicant criticised the lack of evidence adduced by the respondent as to the qualifications of Ms Cooper. Dr Dickson had not been able to specifically identify this person's qualifications, but had merely asserted that she had a Masters degree. This was inconsistent with his view that the successful candidate should have a PhD or similar work experience. An inference should be drawn that Ms Cooper had not completed a Masters degree.

[168] The applicant put that the respondent had not taken the appropriate steps to comply with its consultation obligations, meaning a 'genuine opportunity to influence the decision maker'; See: Ball v Metro Trains Melbourne T/A Metro Trains [2012] FWA 8384. Dr Dickson had admitted that he had taken the view that the applicant was unsuitable for the new role, before she had been told that she would be made redundant. The applicant referred to the consultation provisions of the Award (cl 8.1(b)). She had emailed the respondent to discuss the restructure and sought to have an official of the Union present in the meeting. No meeting was arranged and the applicant denied that any change in this intention could be read from her email of 28 February 2014 (see para [256]). If she was unclear, Ms Driessen should have at least emailed back so as to clarify the applicant's meaning. The evidence supported a finding that the respondent was eager to get rid of her.

[169] The applicant put that nature of the 'sham' redundancy was unfair in itself and this case could be distinguished from Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239. There was no evidence that she was an underperforming employee and, in any event, it had not provided her with any warnings for poor performance. The applicant noted that the respondent appeared to rely solely on its submissions that the applicant had been made redundant and had not made submissions that her dismissal was not 'unfair, unreasonable or unjust' (within the meaning of s 387 of the Act).

[170] While the applicant had initially sought reinstatement, she had now obtained alternative employment and sought the maximum amount of compensation of 26 weeks pay. The respondent had behaved in a deceptive manner and the maximum amount of compensation would provide a deterrent effect in this regard. She had also been unemployed from the time of her dismissal until the end of August 2014, although she had mitigated her losses by seeking and obtaining alternative employment. However, this was at a more junior and lower paid role.

[171] The respondent also provided two sets of written submissions prior to the hearing of the application, one dealing with the jurisdictional objection that the applicant's dismissal was a 'genuine redundancy' (17 June 2014), the other with the substantive merits of the applicant's case (1 July 2015). These were signed by Mr Frost. The respondent filed its final submissions on 16 February 2015, which were signed by Ms V Siow, Solicitor. I summarise these submissions below.

[172] The respondent submitted that the termination of the applicant's employment was a 'genuine redundancy'. It referred to s 389 of the Act and cl 8.1 of the Award. It also set out the nature of the restructure in mid-2013, which the applicant had acknowledged in cross examination. As a result of the restructure, the applicant reported to Dr Dickson, rather than Ms Spies. Dr Dickson had made a decision that SLS services needed to be offered uniformly across the four NPI Colleges, as was the expectation of industry regulators. This required a strong, senior academic leadership role. Dr Dickson's evidence was that he had consulted with Mr Little and Ms Driessen about this role. The centralised Head of Student Learning Support was created and sat at the NPI, rather than the ACAP level. The applicant had conceded having been aware from January or February 2014 of the possibility of extending SLS services across NPI.

[173] The respondent put that as a result, the applicant's position of Manager, Student Learning Support (ACAP) was redundant and its duties would be subsumed into the new and wider role. While the duties were still required to be performed, the applicant's job, being the particular aggregation of duties and responsibilities, was not. There were significant differences between the two roles. The respondent claimed that the applicant had mischaracterised much of Dr Dickson's evidence as 'admissions' on this point. His evidence actually disclosed that:

(a) the nature of the strategic and analytical thinking that is required for the new role is greater than it was in the applicant's role;

(b) the leadership responsibilities of the new role are elevated to a different level to that in the applicant's role;

(c) there is a higher level of more diverse responsibility, oversight and integration than that required in the applicant's role;

(d) the applicant's role was a leadership role, but not a national leadership role, although there was some impact on other states.

(e) the applicant's role was focused on ACAP, while the new role covered the different Colleges within NPI, with a fundamental increase in scale and diversity in management and leadership;

(f) the new role involved significant relational tasks beyond 'rolling out' programs; and

(g) it was expected that the new role would require the application of substantial scholarly overview, a stronger emphasis to the provision of SLS to students and a very strategic and high level view taken as to how SLS services could be developed across the Colleges, recognising the diversity of student learning needs within those groups.

[174] The respondent described the applicant's submission that Dr Dickson had not substantially disputed the numbers of students across NPI, as misleading. Dr Dickson's evidence was that the applicant's numbers did not take into account new enrolments. The evidence demonstrated that the new role had responsibility for a significantly higher number of students. The respondent noted that the applicant's base salary had been $85,000 at the time she was made redundant. The base salary for the new role was $120,000. While this latter figure was disputed by the applicant, she had adduced no evidence to support this assertion.

[175] The respondent submitted that the applicant's redundancy had been enacted after a reasonable consultation process which complied with its Award obligations. Ultimately, Dr Dickson had formed the view that the applicant was not sufficiently qualified, skilled or experienced for this role. Additionally, the applicant's job was no longer required to be performed by anyone due to changes in the respondent's operational requirements. The fact that the applicant's duties were subsumed into a more senior role, did not mean her dismissal was not a 'genuine redundancy'; See: McAlister v Bradken Limited [2010] FWA 203.

[176] The respondent maintained that it had complied with its consultation obligations under cl 8.1 of the Award in that it had discussed the creation of the new role and its likely effect on the applicant with her as early as practicable after 24 March 2014. Prompt consideration was given to matters raised by the applicant and she was informed of all relevant information about the changes. These matters were brought to her attention in the meeting on 25 March 2014. She had been told that HR would seek to find a suitable alternative role and that Dr Dickson and Ms Driessen wished to meet with her again. She was also handed a letter setting out the proposed redundancy, a copy of the EAP flyer and a copy of Navitas' redundancy policy.

[177] The respondent referred to the meeting of 25 March 2014. The evidence was that the applicant was a reluctant participant and had not sought to engage in discussion about the relevant issues; merely asking when she would 'finish up'. Ms Driessen had continued to communicate with the applicant as to possible redeployment opportunities, and her redundancy entitlements, as evident in her emails of 26 March and her attempt to organise a meeting on 28 March. In her email of 28 March 2014, the applicant had not sought to take up any of the meeting options put to her by Ms Driessen. The applicant's evidence that this email was intended to convey that she could not attend that day only, was inconsistent with her statement that she would return her keys and swipecard and her reference to the closure of her work email account. The applicant had conceded that Ms Driessen had sent an email to her extending the consultation period to Monday 31 March.

[178] The respondent put that the applicant's reliance on Ball v Metro Trains Melbourne T/A Metro Trains [2012] FWA 8384 was misconceived as there was no other position to which she could have been redeployed; See: Williams v Streamline Plastering Pty Ltd [2014] FWC 2571.

[179] The respondent submitted that it was not reasonable, in all the circumstances, that the applicant be redeployed to the new role. It referred to Ulan Coal Mines v Honeysett as setting out the matters relevant in determining whether redeployment would have been reasonable. The evidence demonstrated that the nature of the new role was substantially different and more senior to the applicant's role, that the applicant's skills and experience were insufficient for the new role and the remuneration for the new role was substantially higher. Dr Dickson had formed the view that the role required a PhD or equivalent work experience and the applicant's criticism of his explanation on this point, was baseless.

[180] The respondent noted that the evidence of Dr Dickson demonstrated that he had found it challenging to usefully discuss the integration of SLS services across NPI with the applicant. He had formed the view that the applicant's reports lacked insight and that her liaison, supervisory and consultative skills were inappropriate for the new role. He had concerns as to her ability to take on new challenges and her interpersonal and leadership skills. There was abundant evidence of the last of these weaknesses. While the applicant had put to Dr Dickson that an appropriate assessment of her skills in this regard would be by way of the type of assessment that occurred in performance management, the respondent submitted that this would be overly onerous. It was open to Dr Dickson to make the assessment he had made. Whether Dr Dickson was 'unhappy' with the applicant or not was irrelevant to this assessment. Performance reasons were irrelevant to the decision to terminate the applicant on the basis of redundancy.

[181] The respondent submitted that it had taken the appropriate steps to attempt to redeploy the applicant. The evidence was that, as a result of an investigation by Ms Hans, it was determined that there were two vacant positions in the respondent's business. The applicant had set out that she was willing to work at a similar level, within the Sydney CBD or reasonable surrounds. The only two roles were a casual relief teaching position entirely incommensurate with the applicant's position and a role based in England. It was open for Ms Driessen to conclude that there were no suitable redeployment opportunities with Navitas' enterprise or its associated entities.

[182] The respondent submitted that the application should be dismissed on the basis that the dismissal was a case of 'genuine redundancy'. If the Commission formed the view that the applicant's dismissal was not a case of 'genuine redundancy', it should not find that the dismissal was unfair. The applicant's submission that if the respondent's jurisdictional objection failed, then the respondent's entire case failed, was not correct; See: Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239. The dismissal would only be unfair if it could be demonstrated that the rationale for the decision was seriously undermined or there was a serious error in procedure that rendered the termination unfair.

[183] It emphasised that the applicant had not been dismissed for performance reasons, but rather that her role had ceased to exist and she could not be redeployed. If the Commission found that this was not a valid reason for dismissal, it could consider it to be a neutral consideration as to whether the dismissal was unfair; See: UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241. She had been notified of this reason and given a chance to respond on 25 March 2014. Additionally, Ms Driessen had offered the applicant opportunities to meet, but none of the times were suitable for the applicant and her Union representative. There had been no unreasonable refusal by the respondent to allow the applicant to have a support person present and the respondent had sought to have a meeting at which her Union representative could attend. It was noted that Navitas was a large employer with a dedicated human resources department. Even if it was found that consultation was inadequate for the purposes of determining whether the dismissal was a 'genuine redundancy', the fact that the respondent had made genuine efforts, should be taken into account in determining whether the dismissal was unfair.

[184] The respondent described the applicant's evidence as inconsistent. She was not a credible witness. She was not forthright in relation to her submissions on legal representation. The applicant's submission that Mr Frost had exposed no flaws in the applicant's evidence in cross examination was expressly denied. She had made a misleading statement as to when she had been notified of the meeting on 25 March 2014, which gave the impression that she had not been notified of the meeting until Dr Dickson had called her shortly beforehand. She was forced to concede this was incorrect.

[185] Additionally, the respondent viewed the applicant's given reasons as to why she did not apply for the new role, as inconsistent. She had said firstly, that she should have been given the role, but then said that she would not get the job, especially if there were better qualified candidates.

[186] The respondent highlighted the applicant's repeated refusal to disclose how she came to have a number of emails. She had first submitted that she had legal advice that she may incriminate herself, but then submitted that she had formed this view on her own. The Commission should draw a negative inference as to how she came to be in possession of these emails. Such conduct should be taken into account when assessing the applicant as a credible witness. By retaining confidential intellectual property of the respondent, she had disregarded the obligations of her employment contract.

[187] The respondent referred to the applicant's submissions on the evidence of Dr Dickson and Ms Driessen. Her submission that Dr Dickson was not impartial and was seeking to defend his previous actions should be ignored. Such an accusation could be levelled at any witness. Her description of Dr Dickson's reasons as 'vague' were untenable in the context of the applicant failing to participate in anything but a brief meeting. Nor was it true to say that he had been an argumentative witness; there were simply occasions when he did not agree with the propositions being put to him. There was nothing extraordinary about a witness who could not recall minor details. The applicant had wrongly sought to use his lack of recall to demonstrate inconsistency in his evidence.

[188] There was no evidence that Dr Dickson or Ms Driessen had preferred Ms Parker's version of events without reference to the applicant; rather the evidence demonstrated that the applicant had admitted the relevant conduct. Nor was Ms Driessen's statement that superiors should be specific about performance problems with their subordinates, inconsistent with her opinion that it was inappropriate to identify the identity of an individual who had made comments about the applicant's leadership style. Specific feedback did not necessitate the disclosure of an individual's identity. The respondent emphasised that Ms Driessen's opinions and views were based on her experience in management, leadership and supervision of staff. It was incorrect to assert that she was not qualified to judge the applicant's suitability.

[189] The respondent submitted that the applicant's view that her redundancy was a 'sham' was based only on her personal belief. While she had criticised a lack of contemporaneous notes as to the development of the new role, she had been informed of the restructure, the new role and the employer's view that she was not suitable for this role. This case could be distinguished from NTEU v RMIT.

[190] The respondent rejected the applicant's submission that a negative inference should be drawn against the respondent for failing to present the successful candidate's academic transcript. The fact was that the respondent did not hold this document in its possession. Nor should there be an adverse inference from Dr Dickson's failure to remember the exact details of Ms Cooper's qualifications. He had maintained his evidence that she held a Masters degree. It was open for the applicant to have subpoenaed Ms Spies or Ms Cooper in the proceeding.

[191] The respondent denied that seeking the applicant's view on the expansion of SLS services across the NPI Colleges, constituted an expansion of her role. Rather, it was reasonably incidental to her existing role. Whether or not the applicant had demonstrated incompetence in her role was irrelevant to whether she should be appointed to the new role; the question was whether she was suitable for the new role.

[192] The respondent noted that at the outset of the hearing, the applicant had indicated she sought reinstatement, but during further programming of the matter at the end of the first day, she had said she would be starting her new job shortly. The Commission should draw an inference that the applicant initially failed to inform the Commission of this so as to maximise any remedy. Moreover, she had not substantiated the difference in her income in her new employment. In the event that compensation was ordered, it was submitted that it should be at the lower end of the scale, taking into account her redundancy payment and her short period of employment.

Statutory provisions and applicable principles

[193] As the gravamen of this case lies on whether the applicant's dismissal was a 'genuine redundancy' within the meaning of s 389 of the Act, it is necessary, at the outset of my consideration of the matter, to highlight some of the relevant authorities as to the meaning of redundancy in an industrial setting.

[194] I commence with the expanded definition of 'genuine redundancy' in the Explanatory Memorandum to the Fair Work Bill 2008. It is set out as follows:

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer's operational requirements relate only to a part of the employer's enterprise, as this will still constitute a change to the employer's enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.'

[195] The meaning of the term 'redundancy' may vary depending on the particular industrial context and/or the text of an applicable industrial instrument in which it is found. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J held at [12] that:

'In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning_._'

[196] More recently, a Full Bench of this Commission in Construction, Forestry, Mining and Energy Union and others v Spotless Facility Services Pty Ltd [2015] FWCFB 1162 said at para [66]:

'[66] The meaning of the word 'redundancy' is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position - whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise - is a separate matter, albeit one which may determine the entitlements of the redundant employee. Indeed the presence of the express exclusion in s.119 (and in the predecessor TCR case) demonstrates that the abolition of a position as a result of ordinary and customary turnover is a redundancy; albeit one that does not give rise to an entitlement to redundancy pay. The exclusion would otherwise be entirely otiose. As we have earlier indicated, s.119 does not define 'redundancy'. It merely sets out the circumstances in which an employee will or will not have an entitlement to redundancy pay under the NES. Doubtless employees who fall within the class have been dismissed by reason of redundancy, but 'redundancy' is not thereby so narrowly confined. Further, although we accept that the industrial contextual considerations identified by Spotless lend some support to its contention, other industrial contextual considerations cannot be ignored. There is firstly the incorporation of the redundancy provisions of the Building On-Site Award and the Plumbing Award which each carry a definition of redundancy which is contrary to the meaning of redundancy contended for by Spotless [footnote omitted, my emphasis].'

[197] In Foster's Group Ltd v Wing (2015) 148 IR 224, Habersberger AJA referred to a number of the superior court authorities on the subject of redundancy. At pages, 230-233 His Honour said:

33. A clear guide to the meaning of redundancy is to be found in the judgment of the Full Court of the Supreme Court of South Australia in R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd. In that case Bray CJ said that:

" … the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone. "

"The word 'redundant' does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts a definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of an employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing. "

34. The meaning of redundancy was recently considered by the Full Court of the Federal Court of Australia in Dibb v Commissioner of Taxation (Cth). That case arose out of a private ruling by the Commissioner concerning the tax liability of Mr Dibb in respect of a lump sum settlement received by him following the termination of his employment as a district manager with a finance company. One of the issues was whether Mr Dibb's dismissal was by reason of his bona fide redundancy within the meaning of s 27F of the Income Tax Assessment Act 1936 (Cth). In a joint judgment, Spender, Dowsett and Allsop JJ referred to Adelaide Milk and continued:

"34 We note also the observations of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 as follows:

'However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs where the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, 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 in the sense in which the word was used in the Adelaide Milk Co-operative case.

"35 Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332-333 Beazley J said:

'There was no dispute that the "operational requirements" of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed.; or where the employer wishes to amalgamate jobs. … As was said in Bunnetts' case (Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 354:

"Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.

"36The Macquarie Dictionary (3rd ed, 1997) now relevantly defines 'redundant' as meaning:

' … denoting or relating to an employee who is or becomes superfluous to the needs of the employer …

"37In the Oxford English Dictionary (2nd ed, 1991) the word is defined relevantly as:

'The condition of having more staff in an organisation than is necessary. Hence, the state or fact of losing a job because there is no further work to be done; a case of unemployment due to reorganisation, mechanization, loss of orders, etc.

35. Their Honours contrasted the position adopted by the Commissioner and the primary Judge with the approach espoused by the South Australian Full Court in Adelaide Milk, which necessitated "identification of the 'jobs' in question". Their Honours continued:

"41In Jones Ryan J observed that 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'. We accept that view. Ryan J then observed that where such duties are reassigned, the question is whether any function or duty remains to be performed by the employee. We do not understand his Honour to have meant that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant. His Honour's meaning appears clearly from the following paragraphs at 308-309:

'In this case, the respondent led evidence that of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant's former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer's rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.

On this basis, it appears that Mr Jones' former position was rendered "generally redundant". When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent's personnel needs. This amounted to a reason for dismissal which was clearly based on his employer's operational requirements.

'A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs …

"43 The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the 'bona fide redundancy of the taxpayer'. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular 'job', will be able to perform any available 'job' existing after such reallocation. Even if the employee's job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

• considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word 'available' as meaning 'vacant', and the word 'suitable' as meaning 'within the employee's capacity'. "

36. It seems to me that the approach followed in Adelaide Milk has been reflected in the wording of Foster's policy. The critical question is whether through no fault of the employee his or her role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists [footnotes omitted, my emphasis].'

[198] The consistent theme which arises from the above citations is on the employer's prerogative to rearrange the structure of its business by breaking up the functions, duties and responsibilities of a single position and distributing them among the holders of other positions, including newly created ones. In these examples, the work required to be performed does not change. In this case, the applicant was emphatic that the duties and responsibilities of the newly created position of Head of Student Learning Support were no different to those she had previously performed as Manager, Student Learning Support (ACAP). She also argued that even if this was a new position created by the respondent, she was more than qualified and well suited to the role (and more qualified than anyone else) and should therefore have been redeployed to the new position.

[199] In Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1, Vickery J, after summarising the relevant authorities, encapsulated the definition of redundancy this way:

'In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of "redundancy" comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees. In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, "for all practical purposes the original role no longer exists" because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge; and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee [footnotes omitted, emphasis added].'

[200] In Ulan Coal Mines v Howarth and others [2010] FWAFB 3488 ('Ulan Coal'), a Full Bench of the Commission held at paras [19]-[20] that:

'[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the "jobs" of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company's requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise [emphasis added].'

[201] In a recent Commission appeal decision, Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259, a senior Full Bench, presided over by the President, Ross J, said at para [28]:

'[28] In determining whether a dismissal is a 'genuine redundancy' the Commission is concerned with whether 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'. A decision by an employer to outsource all of an employee's duties is clearly a redundancy.'

[202] These comments echo the words of Cl 1553 of the Explanatory Memorandum to the Fair Work Bill 2008 (see para [194]). It is also relevant, at this juncture, to observe that a person's capacity or conduct, as to whether there was a valid reason for the dismissal, does not go to the process of selecting the person for redundancy. So much so is clear from the decision of the majority (Acton SDP and Bissett C) in UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241, where it was said at paras [26]-[29]:

'[26] We have concluded, however, that s.387(a) of the FW Act regarding the matter of whether there was a valid reason for the dismissal related to the person's capacity or conduct does not go to the process for selecting the person for redundancy. We have come to this conclusion having regard to the following factors and for the following reasons.

[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person's dismissal related to the person's capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA's consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being "any other matters that FWA considers relevant".

[28] We think it unlikely that it was intended that FWA's consideration of whether there was a valid reason for the dismissal related to the person's capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA's determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA's consideration as to whether the dismissal was harsh, unjust or unreasonable.

[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.'

Consultation with the employee and redeployment

[203] There is, of course, a second leg to the Act's definition of 'genuine redundancy'. The applicant claimed that she had not been properly consulted about her redundancy and, in any event, the newly created position of Head, Student Learning Support should have been offered to her. Before dealing with the relevant authorities, it must be made absolutely clear that consultation under an industrial instrument does not mean the affected employee/s must agree to the redundancy or that it involves joint decision making. As was said by the Full Bench in Consultation clause in modern awards [2013] FWCFB 10165 at para [32]:

'It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.'

Ultimately, the decision to make an employee redundant is at the discretion of the employer, subject to the decision being soundly based, obligations to consult being complied with and reasonable redeployment options having been considered.

[204] In Ulan Coal, the Full Bench held that employees and their representatives should be involved in the problems associated with redundancy as soon as a firm decision has been taken that redundancies might be necessary. At para [28], the Full Bench said:

'[28] Sub-clause 23.1 is in somewhat similar terms to the consultation provisions determined in the TCR Cases. It is clear that the intention in those cases is that the employees and their representatives should be involved in the problems of redundancy as soon as a firm decision has been taken that retrenchments might be necessary (see TCR Case [1984] 8 IR 34, at 62-64). This intention can also be discerned from the wording of sub-clause 23.1 of the Agreement itself. The requirement is for discussions to begin "as soon as is practicable" after a definite decision is made about redundancies. The decision is described in the sub-clause as one which "may" lead to termination of employment (par 23.1(1)) and the discussions to be held will include consideration of the reasons for "proposed terminations" and measures to "avoid or minimise the terminations" (par 23.1(2)). The discussions as such will be of relevance to the entire workforce of an enterprise or at least to that part of the workforce whose work or jobs will be affected by terminations due to redundancy. In the present case, this would be the mineworker employees at the mine. These are the employees "directly affected" by the decision to change the size and composition of the mineworker workforce at the mine and the group with whom the Company must hold discussions. The discussions are envisaged to take place before the number of terminations is finalised and the particular employees to be retrenched are identified.'

[205] Two recent Full Bench decisions expressed the obligations on the employer in respect to redeployment as follows. In Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578, the Bench said:

'[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee's residence and the remuneration which is offered.

[30] In relation to its appeal, and leaving aside the issues of construction we have already dealt with, Ulan submitted that the Commissioner's decision was wrong because he did not identify the particular positions in a particular enterprise to which each of the six applicants could have been redeployed. He also erred in not taking into account the failure of the employees to pursue job opportunities with the related entities after Ulan had publicised those vacancies. The Commissioner was influenced in this regard by the fact that the employees would have been competing for positions rather than being given some kind of preference. Further, it was submitted that the evidence indicated that the evidence given by four of the applicants did not indicate that at the relevant time they were interested in and ready and willing to take employment away from Mudgee.

[31] The Commissioner found that entities associated with Ulan had vacancies for jobs which were potentially suitable for the dismissed employees and there was no evidence that redeployment from Ulan to the mines operated by these associated enterprises would have any impact on operational efficiency. While the Commissioner decided that some of the employees dismissed by Ulan were encouraged to apply for vacancies at mines operated by associated entities, he also found that neither Xstrata nor its associated entities had a policy of employing persons who might be redundant in other enterprises in the group. In Xstrata's case, this is despite the fact that it had overall managerial control in relation to the mining operations of the associated entities. These findings were open to him. The Commissioner also found no evidence that any of the relevant employees would have been unwilling to be redeployed to one of the other mines. It must be said that all of the evidence was not one way on this issue and, as Ulan's submissions indicate, some of the employees in particular did not display a great deal of energy in following up on vacancies which Ulan brought to their attention. Nevertheless we think it was open to the Commissioner to find that if offered redeployment they would have accepted it.

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer's enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.'

[206] In Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 ('Pykett'), a Full Bench of this Commission held:

'[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent's submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that 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 also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the 'genuine redundancy' exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) 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 employer.'

[207] Despite the applicant's absolute rejection of the genuineness of her redundancy, it seems to me that this case was really about her grievance at not being selected for the new role of Head, Student Learning Support and her resentment of the person selected for the position. While I will consider shortly the application of the principles of 'genuine redundancy' to the present case, it is necessary for the Commission, at this point, to make findings as to witness credit, particularly given it was the applicant herself who called into question the credibility of Dr Dickson and Ms Driessen, with numerous accusations of lying, contradictions, inconsistency, vagueness, misrepresentation, self-serving and unreliability made against them.

[208] Having made such claims against the respondent's witnesses, it was somewhat ironic that the applicant emailed the Commission after the proceedings had concluded, and the decision had been reserved, and requested a further opportunity to respond, if the Commission was minded to make adverse findings (of credit) against her. Her email was in these terms:

'I have read the employer's Final Submissions in this matter and note that there are attacks on my credibility as a witness.

I do not believe that an assessment of my credibility is necessary to determine the case and do not wish to respond to those submissions unless there is a risk that there will be adverse findings made in respect of myself.

If the Deputy President is minded to make adverse findings against me, I would ask that I be given the opportunity to respond to the employer's Response.'

[209] Perhaps even more surprising is the applicant's misplaced view that the assessment of her credibility is unnecessary to determine this case, yet from her submissions, an assessment of Ms Driessen's and Dr Dickson's credibility is necessary in order for the Commission to find in her favour. It is an odd contradiction.

[210] Two further general matters arise from the issue of witness credibility in this case. Firstly, in many unfair dismissal cases, questions of witness credit arise, not necessarily with findings that a witness has been deliberately untruthful (indeed, this is rare), but more usually, in the context of preferring one person's evidence over another, because one of them is not a credible witness. Such findings are not unusual for the Commission to make in contested proceedings, particularly involving 'word on word' evidentiary cases.

[211] Secondly, and more importantly in the present context, the applicant could have been under no illusion that her credibility was to be put in issue when she refused to answer questions as to how she had obtained emails between third parties, despite my express direction for her to do so; See: para [41] above. This occurred at an early stage of the proceedings during the applicant's cross examination and was unfortunately reagitated when the applicant sought to tender the emails again during Dr Dickson's cross examination.

[212] Having been clearly on notice that her credibility was in issue, as reaffirmed in the respondent's submissions, it was incumbent on the applicant to respond in her later written submissions. Her failure to do so was of her own making. Moreover, it was improper to have approached the Commission, once the decision had been reserved, for an opportunity to address any criticism of her if the Commission was minded to make adverse findings.

[213] The fact that the applicant defiantly refused to comply with the Commission's directions to reveal how she had obtained emails between two other employees, who were not even witnesses in the case, demonstrated at the very least, disrespect for the Commission and its processes and may have involved improper, if not illegal conduct.

[214] Section 590(c) of the Act is expressed as follows:

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;'

In my view, a clear adverse inference can be made against the applicant as to the means by which she obtained these emails.

[215] I would add the following comments. It must not be lost sight of that parties who seek the assistance of the Commission to obtain orders for relief under the Act, are bound to cooperate and comply with all directions of the Commission to ensure the orderly and efficient conduct of proceedings. This includes answering questions, in cross examination, which are probative to the issues to be decided in the case. It is not open for a witness to determine the relevance of a question or refuse to answer a question when directed by the Commission to do so. In other words, it is not open to a party to decide for themselves how the Commission's proceedings are to be conducted.

[216] Where the Commission's directions are blatantly ignored, or there is a refusal to comply, it may result in the proceeding being adjourned indefinitely until undertakings are given by the defaulting party that the Commission's directions will be complied with. Mr Frost asked the Commission to dismiss her case when the applicant refused to answer a question she was directed to answer for a second time.

[217] I also note the Commission's website information on Conduct and Behaviour in the Commission, where it is said:

Parties and their representatives have obligations to behave appropriately to both the Commission and each other, and in a way that helps provide a fair hearing for all.

• treat the Commission and other parties/representatives with courtesy and respect

• act honestly, and not knowingly give false or misleading information

• cooperate with other parties and the Commission to enable the just, efficient, timely and cost effective resolution of the issues in dispute

• act promptly, comply with Commission directions, and minimise delay

• take reasonable steps to make sure the costs incurred in connection with proceedings are reasonable and proportionate to the complexity and importance of the issues and amount in dispute, and

• where appropriate, take reasonable steps to resolve disputes by agreement or to minimise the number of issues in dispute [my emphasis].'

[218] I also found a number of other matters to be particularly troubling as to the applicant's conduct during her employment with Navitas.

[219] The applicant was called to a meeting with Dr Dickson and Ms Driessen to discuss issues with Ms Parker, a subordinate of the applicant. Ms Parker had complained that the applicant had contacted her daughter, without identifying herself and had asked her questions about her being a student at the College. The fact was that the applicant had made this call, as her own evidence reveals; See para [31]. There was absolutely no reason for the applicant to call Ms Parker's daughter for any professional or business reason. This approach was not only improper, but her likely motivation was vengeful and deceitful. She was seeking to 'trap' Ms Parker's daughter into saying something she could use against her mother.

[220] But how did the applicant explain her behaviour? Rather than openly admitting her behaviour, or more properly acknowledging she was wrong to do so, the applicant twisted and manipulated the evidence of Dr Dickson and Ms Driessen in order to shift blame away from herself by complaining that the details of the conversation were not put to her. This was an absurd, diversionary submission. It was not the actual words of the conversation which were relevant, but the fact that she had phoned Ms Parker's daughter for an improper and ulterior purpose or, indeed, at all. When asked why she had not asked Ms Parker about her concerns, the applicant justified not doing so, because she had no confidence that Ms Parker would answer her truthfully. If this was correct, it sits rather uncomfortably with her own conduct of then improperly and deceptively phoning her daughter.

[221] The applicant made improper inquiries of the new person for the role (Ms Cooper), what her skills were and what she was paid. She had made inquiries about the other candidates who applied for the role. She even disputed that the new role's salary was $120,000. How could she possibly know? The applicant seems to have acquired information about persons, employees and candidates for positions, through what could be suspected to be improper or inappropriate means.

[222] The applicant sought to rely on a LinkedIn profile pertaining to the successful candidate for the role, Ms Cooper, to discredit her. The material was denied admission into evidence. Despite insisting that the central issue in this case was not about other people's skills and qualifications, the applicant's purpose was to denigrate and belittle the qualifications and experience of Ms Cooper. When Dr Dickson, in cross examination, could not precisely identify Ms Cooper's qualifications, the applicant said his statement on this issue was a 'lie'. It was perfectly understandable that Dr Dickson could not recall the precise details, but he certainly had a sufficient understanding to know Ms Cooper was qualified for the role and to form the view that she was a more suitable candidate than the applicant.

[223] Then there was the debate about student numbers. Despite the applicant's assertions that Dr Dickson's evidence was inaccurate, the applicant was forced to acknowledge that she had obtained and retained confidential student information, the property of the College, for her own purposes. Again, this was improper. In an extraordinarily bold defence, the applicant claimed that it was irrelevant as to who owned the information. This was absurd nonsense. As a former employee, she was not entitled to obtain and retain confidential information belonging to the College. In any event, the reliance by the applicant on the records she had extracted were inaccurate and the differences were marginal at best. For example, the January 2014 figures did not include all new enrolments for the year.

[224] Regrettably, these incidents leave me with little confidence that the applicant was a truthful or reliable witness.

[225] Moreover, her answers to straightforward questions were often diversionary, unconvincing, self-serving and unhelpful. An example of the applicant avoiding a direct question actually came from my questions at PN 421 - PN 425:

'I'm asking you how you knew what people were doing at their interviews? How could you possibly know that? You weren't there. This is all speculation isn't it on your part?---No.

I'd like to know how you know how people performed at an interview when you're not even there?---I thought we were talking about - - -

Don't try and change the subject to suit your circumstances. I asked you a direct question and you can't answer it because you weren't there, you don't know how people performed at an interview, you don't know the qualifications that people have as applied to the position that was being advertised for. You're just making all this up?---I've got a copy of the Linked In profile, anyone - we can get the internet up and we can see it for ourselves. We can log in to Linked In and we can see it. It's in the public domain as we speak.

Well, you still haven't answered my question on how would you know how people performed at an interview?---Obviously I wouldn't know that particular thing.

'THE DEPUTY PRESIDENT: I'm not prepared to have this witness answer questions about an email exchange between two other persons, and the source of that email is not, from your own mouth, not able to be revealed, or unwilling to provide the source.

THE DEPUTY PRESIDENT: No, where you got it from, Ms Bertrand. Don't play word games with me.'

[226] In my opinion, the applicant's evidence must be seriously doubted when it conflicts with that of Dr Dickson and/or Ms Driessen. This is so because I found both Dr Dickson and Ms Driessen to be witnesses whose evidence was credible, considered, logical and believable. Their evidence was entirely consistent and generally corroborative of each other's version of events. They both gave detailed evidence calmly and confidently, despite considerable pressure, intimidation and offensive questioning by the applicant in their cross examination. Apart from directly calling Dr Dickson a liar several times (see para [19]), another example of offensive questioning is found in the following cross examination of Ms Driessen:

'MR FROST: I object to the question. There's no basis for believing that Ms Driessen is aware of why Ms Spies is or isn't here and the consideration impacting on Ms Spies not being here, that's a decision that's been taken by the company and its legal team and not by Ms Driessen. It's relevant to observe that Ms Driessen is no longer employed by Navitas and hasn't been for some months.

MS BERTRAND: Yes, so why are you here today helping them?

MR FROST: I object to that question too. What possible relevance has that got to anything?---I actually find that quite offensive. I'm not here to help out anyone.

THE DEPUTY PRESIDENT: Yes, your objection is upheld. You don't ask those sort of gratuitous questions.'

[227] I note that the applicant consistently sought to 'cut off' the answers being given, if she felt their responses were unhelpful to her case. An example of cutting off Ms Driessen can be seen below:

'Can you tell us what was said, though, because that's - - -

MR FROST: Can the witness finish her answer, please?

THE DEPUTY PRESIDENT: Yes, she will be allowed to finish her answer.

MS BERTRAND: All right, finish your answer?---I believe Scott relayed most of the concerns by Jacqui Parker that she approached Scott and myself, I think she spoke to both of us, about a concern that her daughter had been contacted by an employee of ACAP who did not mention the name but made some inquiries about enrolment about further studies at ACAP, and she believed that person to be you, although, a name wasn't mentioned, so we raised the concern. Scott raises concerns about that, that we believed it was unprofessional and inappropriate to ring an employee of the college without stating who the person is to find out information that would have been much better obtained in another way. So we discussed the concerns you had about - or the reasons you had why you rang Jacqui's daughter, and I believe you stated at a meeting that you needed to know that information, and we had a conversation that it would have been much better obtained through Jacqui or from Jacqui and discussed the issues that way, so we had a conversation about that and Scott and I clearly, I believe, relayed that we felt it was inappropriate to do that.

Why didn't you wait to terminate my employment? Why didn't you wait until the union officer could be present?---I did not terminate your employment. We asked for you to meet with us again on Thursday and initially you said, "That depends on the availability of a union officer. I will get back to you." Then you indicated that that might not be possible to meet for a union - - -

I - - -?---Can I finish? You indicated that it might not be possible for a union officer to be available. Then I suggested that we wanted to continue this process and move along. We offered you three or four available times on Friday and you did not get back to us on that at all. You did not say, "Yes, I can meet on Friday," or, "I can't meet on Friday." So we gave you alternatives. It actually says that on 46. We had 11.00, 11.30 or 12 pm. I continued to engage with you around possible other options.'

[228] For the above reasons, where the evidence of the applicant conflicts with that of Dr Dickson's and Ms Driessen's, it is their evidence which I prefer.

[229] Unfortunately, I feel bound to say that the applicant displayed a hugely exaggerated sense of her own performance and capabilities, which fall well short of reality. Her questions in cross examination of Dr Dickson frequently began with, 'Under my leadership..'. Yet it was a leadership which her colleagues regarded as autocratic, uncooperative and uncollegiate to the point of anonymous feedback being made about her leadership style. While the applicant criticised this feedback as baseless and wanted to know who had made them, the College was perfectly entitled to maintain confidentiality, given the nature of the complaints and her propensity to twist and manipulate events in order to denigrate anyone who criticised her. Importantly, the substance of the feedback was put to the applicant.

[230] During the proceedings, the applicant displayed extraordinary confidence as to the merits of her case to the point of bravado and disrespect. She was argumentative, condescending and she had a fundamental, all-consuming belief in her own abilities and strengths. Not once would she admit to any weaknesses or fault. When viewed from the prism of this all-consuming self-belief, any criticism of her was out of the question. Anyone who did so was just part of a conspiracy to get rid of her. This would have included Dr Dickson, Ms Driessen, Mr Little, Mr Arkell, Ms Spies and her own team. The applicant's conspiracy theories are just implausible nonsense.

[231] The applicant criticised the failure of the respondent to call Ms Spies and Mr Little. From her own submissions, there were tensions and disagreements between herself and Ms Spies prior to Dr Dickson becoming her direct report in September 2013. Mr Little's absence was criticised because he had reviewed Ms Spies' decision not to award the applicant a pay rise and upheld it. Even though these are factual matters (not even disputed by the applicant), the decision to make her redundant and not to offer her the new role was Dr Dickson's, supported by Ms Driessen. They were perfectly entitled to take these factual matters into account in determining the applicant's unsuitability for the new role.

[232] Moreover, an employer is not obliged to call every witness or person involved (no matter how loosely connected) to support its case. The relevant decision maker was called, as was the HR Advisor. In any event, the applicant could have subpoenaed other persons if she believed their sworn evidence would assist her position. Given she had been receiving some legal advice from an unnamed source and that she had earlier sought orders for production in the case, she would not have been unfamiliar with the summons process. In any event, the fact that Dr Dickson said he had not been unhappy with her while he was her manager, is beside the point. He was well positioned and well informed to have made the decision of her unsuitability for the new, different and more senior position.

[233] In respect to the decision not to award the applicant a pay rise in 2013, I note that a formal grievance was not followed up, because the applicant refused to be bound by confidentiality. The applicant's criticism of the failure to award her a pay increase was misconceived. Confidentiality about such a matter was a perfectly understandable expectation of the respondent. She had no basis to complain when she refused to keep the matter confidential.

[234] In a very odd submission, the applicant put that Dr Dickson was not an impartial witness, because his evidence merely sought to justify his own judgements and decisions. One would hardly expect him to do otherwise, but it does not follow that his evidence was untruthful or unreliable. More generally, the applicant criticised Dr Dickson and Ms Driessen as being unfair and partial witnesses. It followed that their evidence was unreliable and should not be accepted by the Commission.

[235] Unfortunately, the applicant has a misplaced understanding of the role of a witness in the Commission. A witness's evidence cannot be assumed to be impugned because that person's evidence appears to an opposing party, as unfair or partial when viewed from the perspective of the person who is being criticised. A witness's duty to the Commission is to answer questions clearly, relevantly and truthfully. I am satisfied that Dr Dickson and Ms Driessen did so. I apprehend the applicant's opinion that a witness adverse to her cause was unfair or biased was in reality because she simply did not find their evidence helpful to her own case.

[236] The applicant rejected Dr Dickson's reliance on matters critical of her after he had made up his mind that she was unsuitable for the new role. She described this evidence as as 'reconstruction' and 'post facto self justification'. I disagree. Any incidents which occurred after Dr Dickson had formed his view of the applicant's unsuitability merely corroborated his original thinking and confirmed the applicant's unsuitability for the new role. In any event, he had plenty to go on before these later incidents.

[237] The applicant claimed Dr Dickson was vague because he prefaced answers with words such as, 'my understanding was', 'my recollection is' or 'I would suspect'. This is not a sustainable criticism. Witnesses frequently answer questions in this way because no witness can exactly recall the words used in conversations or discussions, which occurred many months earlier; 6-9 months in this case. It is an entirely sensible and responsible way to answer questions. This was a ridiculous criticism.

[238] That is not to say that the applicant is not a well educated, articulate and intelligent person. The fact was that her personal management and leadership skills were a poor match for someone in her position and a complete mismatch for what Navitas expected of the person for the new role. I will elaborate on this conclusion later in this decision.

[239] Given that I have accepted Dr Dickson as a credible witness, whose evidence I prefer to that of the applicant, I accept Dr Dickson's evidence that he had been involved in ongoing reviews to integrate the NPI Colleges. One of the objectives of these reviews had been to centralise the Student Learning Support services (SLS) under a single umbrella. This was to ensure a high quality, equitable service for all students, regardless of the campus, the courses delivered or geographic location. In the result, the SLS services across four Colleges were to be integrated into one business unit, whose head would report directly to Dr Dickson. The number of students able to avail themselves of the service, roughly doubled. Logically, this role required a senior, suitably qualified and experienced person to fill it at a salary level of $120,000p.a. I note that a recent decision in the Federal Circuit Court in Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804, in which Turner J said at para [32]:

'32. The Court finds that there was a genuine restructure as the new position created was at a much higher level than that which had been occupied by the applicant, and had a much higher salary ($110,000.00pa compared with $75,000.00pa).'

[240] Dr Dickson described the key responsibilities of the new role as:

(a) Leading the strategic expansion of SLS services across NPI academic units.

(b) Leading the development of SLS activities based on industry best practice.

(c) Leading the development of SLS services to online students.

(e) Fulfilling reporting obligations and coordinating communications systems and processes.

(f) Representing NPI and NPI Colleges in the community and interacting with internal and external stakeholders.

[241] Implicit in the role was that the person be able to:

(a) identify resource needs amongst the NPI Colleges;

(b) manage the existing SLS service units within NPI Colleges and their staff;

(c) liaise and engage with existing SLS service units to bring them 'on board' with a central and harmonised SLS services system, so as to facilitate a cohesive team; and

(d) understand and apply the most current scholarly thinking and developments to the process.

[242] Putting this together, Dr Dickson determined that a successful candidate should have the following skills and experience:

(a) a PhD or equivalent work experience in an area relevant to this position;

(b) extensive experience within tertiary education at a senior academic management level with a thorough understanding of contemporary student learning support methodologies and the ability to operate in a commercial environment;

(c) demonstrated experience in effectively managing resources, budgets and workforce plans;

(d) demonstrated capacity to inspire and innovate and to identify and take advantage of new opportunities;

(e) excellent written, oral communication and presentation skills;

(f) capacity to drive cultural change and establish strong partnerships and networks; and

(g) high-level management and interpersonal skills with a proven ability to motivate, mentor and challenge.

[243] In my opinion, the rationale for the restructure of the SLS services was soundly based, educationally positive, in the best interests of the students and a sensible business decision. On the other hand, the applicant claimed from the outset that the restructure was just a 'sham' arrangement, contrived by Dr Dickson (and supported by others) to get rid of her. This was her starting point and she would not be swayed from this belief. All her subsequent actions, including the possible improper access and retrieval of email exchanges between two other employees, were designed to corroborate this belief. Anything which pointed to a conventional and entirely unremarkable restructure for genuine operational reasons, was regarded by her as part of the conspiracy to give the impression of a genuine redundancy. This was misconceived nonsense.

[244] To suggest that Dr Dickson, conspiring with others, would go to the trouble of the restructure exercise, merely as a ruse to get rid of the applicant, when he may well have had justifiable performance reasons to dismiss her, in any event, is a phantom interpretation, grounded in a misguided notion of the applicant's own self-importance.

[245] On this leg of s 389 of the Act (sub-section (1)(a)), I find that Navitas no longer required the applicant's job to be performed by anyone because of changes in the operational requirements of the Colleges.

[246] The applicant was advised of the likely redundancy of her position on 25 March 2014 and her last day of employment was 31 March 2014. On its face, 6 days might appear to be a relatively short timeframe in which to properly consult with the applicant and explore options for deployment. That said, under the relevant Award provisions, there is no set or minimum period of time during which the employer is required to consult. Unsurprisingly, this will vary according to the circumstances of each case and, in this case, depends in large measure on the applicant's willingness to cooperate; See: Fitzjohn v Southern Cross Protection Pty Ltd [2015] FWC 2601.

[247] In my view, the applicant was confused as to the meaning of consultation. Consultation relates to the decision to restructure. It does not go to the actual decision to make her position redundant. While the applicant was told her position was to be made redundant on 25 March 2014, at that point, there was no certainty or inevitability of her redundancy. The respondent's subsequent redeployment inquiries and its invitation to the applicant to identify any option she thought might be appropriate, demonstrate its bona fides in this regard.

[248] In any event, the restructure was well known to the applicant at the end of January/early February 2014, as she made clear in her own evidence. Her reliance on the trip to Melbourne in late February to identify issues for the restructure, make it clear she was well aware of the main outcome of the restructure as it affected her role.

[249] The applicant initially refused to attend a meeting with Dr Dickson and Ms Driessen on 25 March 2014, despite being directed to do so, claiming she was 'frantically busy' and then, when she did so, she remained standing, appeared agitated and merely said, 'I don't have time for this' and 'When will I finish up?'. This did not bode well for a cooperative and effective consultation process going forward. In fact, the applicant had been informed of the meeting the day before. When asked why she had not mentioned this in her statement, she claimed it was not relevant. Given that the applicant criticised Dr Dickson for calling her to a meeting with little notice, the fact she knew of it the day before was highly relevant. Her failure to mention it in her statement was a deliberate attempt to mislead the Commission as to when she was told of the meeting.

[250] Additionally, it is trite to observe that a manager is perfectly entitled to request a meeting with a member of his/her staff. It is a lawful and reasonable direction. In my view, the applicant's claim of being 'frantically busy' was a 'furphy' to avoid the meeting.

[251] The applicant was then sent a letter confirming the above conversation (see para [78]). Ms Driessen's evidence - which I accept - was that she had directed Ms Hans to search Navitas' intranet for available positions and sent an email to all HR managers to check of any pending vacancies not yet advertised. Two positions were found, but were obviously considered inappropriate; one being in England and another not being commensurate to her existing role.

[252] Ms Driessen sought the applicant's input into possible alternative positions and she replied as follows:

'Thank you for your reply. I am available for work at a similar level to the job I do now. I am willing to work at any CBD premises, and other Sydney locations that are reasonably easy to travel to from my home in Bexley.

I will get back to you re meeting times tomorrow as soon as I can.'

[253] I note that, despite clear documentary evidence (see below), the applicant claimed Ms Driessen was lying when she gave evidence that redeployment options had been explored. On 28 March 2014, Ms Driessen sent the applicant an email, which said inter alia:

'We continue to explore possible comparable roles for you at Navitas and any suitable roles identified by Monday 31, 2014 [sic] will be discussed with you for further review and consideration. If we will be unable [sic] to find a suitable role however, we intend to proceed with your retrenchment on Monday.'

[254] The applicant was invited to a further meeting on Friday 28 March 2014. However, Ms Driessen nominated three times to assist in accommodating a Union official's attendance. The applicant took personal leave on 28 March 2014. On that day, Ms Driessen offered the applicant a final opportunity to put any pressing reason why the College should not proceed with her redundancy by 31 March 2014. She failed to do so.

[255] Sending in her swipe card and keys and offering her private email was hardly indicative of someone who wanted to positively engage with her employer. The applicant rejected any suggestion that this email was a refusal to engage with the respondent. Rather, she had expected a further meeting to be arranged. Notwithstanding the respondent had sought to meet with her that day, the applicant makes no mention at all of wanting to arrange a further meeting.

[256] In my view, Ms Driessen was entitled to believe that the applicant was not interested in discussing this matter when the applicant emailed her on 28 February 2014 as follows:

I have not been able to fix a time for the union officer to come. In addition, I am not feeling very well, feeling stressed and have decided not to come in to ACAP. I will post my keys and swipe card to admin.

I am contactable by phone, and will check my email later this morning. When ACAP closes down my email account, I am contactable on my private email: [personal email address supplied].

I am also contactable on my mobile: [phone number supplied].

[257] In my opinion, the applicant's refusal to cooperate or offer any suggestions for deployment was based on her belief that:

(b) even if it was, she was the best, and only person, capable of filling the new Head of Student Learning Services role.

[258] Given the applicant's intransigence and non-acceptance of the factual reality, there was nothing more the College could have done to fulfil its consultation obligations under the Award and the Act. If an employee refuses to cooperate with the process, he/she is hardly in any justifiable position to criticise either the length of the process, its substance or its outcome.

[259] One further point needs to be made. The applicant did not even apply for the new role, despite it being widely advertised. While it was probably unlikely that she would have been successful, that is not the point. Here was her opportunity to convince the interview panel (albeit that Dr Dickson was likely to be on the panel) that she was as good as she would have everyone believe. Moreover, she explained that she did not apply for the role, because it was not about her competing with others, but whether she was able to perform the role effectively. This is a contradictory curiosity, given her focus on attacking the successful candidate as having less skills and experience than her and utterly ignoring her own shortcomings. Indeed, her criticism of Ms Cooper extended over ten pages of transcript in questions to Dr Dickson.

[260] In addition, the applicant criticised Dr Dickson, Ms Driessen and Ms Spies for their views on her performance and skills, by saying that she was the only one who knew what her capabilities and capacities were. This was a strange, unrealistic assertion to make.

[261] I am satisfied that Navitas has complied with its consultation obligations under s 389(1)(b) of the Act and cl 8.1 of the Award.

Was it unreasonable not to appoint the applicant to the position of Head of Student Learning Support?

[262] Having found the restructure of the Student Learning Support was a legitimate management decision to restructure its business so as the role of Manager, Student Learning Support no longer existed, the consequential question is whether the applicant should have been offered the new role of Head, Student Learning Support.

[263] It must be emphasised that, consistent with the authorities earlier referred to, if an employer, in good faith:

• considers that the employee is not suitable to perform any available job defined by reference to those reallocated duties; and

• for that reason dismisses the employee, then the employee is dismissed by reason of his/her bona fide redundancy; See: Quality Bakers of Australia v Goulding (1995) 60 IR 327.

[264] Put another way, if the employer has created a new and more senior role arising from a restructure of its operations, it is not obliged to make the new role available to a redundant employee where the employer considers the redundant employee is unsuitable for the new position. Apart from this being the correct legal position, it would make no business sense at all, for an employer to appoint an unsuitable candidate to a vacant position in the new structure.

[265] The harsh reality is that this scenario is not uncommon in Australian workplaces. In a redundancy situation where the employer seeks to restructure its workforce by reducing the numbers of its workforce and reallocating the duties to be performed by a reduced workforce, it will often 'spill and fill' all the available positions and undertake a selection process from the existing employees. This process will usually include both subjective factors, such as a supervisor's assessment and objective factors, such as absenteeism and attained skills and experience.

[266] In this case, not only did the applicant not apply for the new role in the restructure, but she believed she should have been appointed to the position as a matter of right and no one else should have been considered because she was the best qualified and most experienced candidate. It is a bizarre proposition for someone who believes he/she is the best candidate for a role, but did not even apply for it. There is no doubt that Dr Dickson and Ms Driessen believed that the applicant was unsuited for the new role. They were both unmoved in this view and, frankly, I agree with them.

[267] The reality was that the applicant could not effectively manage a small team of two in Sydney, one in Melbourne and a half position in Brisbane. She had not demonstrated effective leadership skills, nor had she the experience or personal qualities to meet the job description for the new role. I accept the following evidence as demonstrating this conclusion:

(a) the applicant had performance issues almost immediately after she commenced employment and was reporting to Ms Spies;

(b) there were numerous, albeit anonymous, complaints about the applicant's autocratic management style. Considering the small team she directly managed, one can assume most, if not all of her team, held this view;

(c) the applicant refused to be appraised by her peers and her superiors;

(d) the applicant refused to acknowledge any personal or professional shortcomings and refused to accept any criticism in her 2013 performance review;

(e) the applicant conducted a performance review of a subordinate in a hallway;

(f) the applicant had no previous responsibility for budgets;

(g) the applicant's reports to the Board were merely student numbers statistics, without any detailed analysis;

(h) the applicant made much of the fact that Dr Dickson had asked her to go to Melbourne in late February 2014 for two days to commence preliminary planning for the restructure. When she came back and Dr Dickson asked her if she had any ideas about the integration, she said she had none. The point was not whether there had been a formal debrief or meeting (no matter how brief). The point was that the applicant had no ideas and, having been asked if she had any, she did not make any subsequent attempt to offer any. In evidence, she claimed she had many ideas. If this was right, it is curious that she never offered them, particularly given that it was her evidence that Dr Dickson had asked her to prepare a position paper after her trip. There was no evidence of any such paper having been written.

(i) the applicant believed she met the requirement to undertake 'scholarly activity' because she had invited an academic to a workshop. I agree with Dr Dickson that inviting a person to present at a seminar/workshop is hardly an example of 'scholarly activity';

(j) the applicant improperly and dishonestly contacted the daughter of a colleague in order to get information on that colleague;.

(k) the applicant insisted that the two roles were virtually the same. Dr Dickson gave evidence that the applicant could not fulfil the functions in the new role's job descriptions because of the following differences:

(i) the nature of the strategic and analytical thinking that is required for the new role is greater than it was in the applicant's role;

(ii) the leadership responsibilities of the new role are elevated to a different level to that in the applicant's role;

(iii) there is a higher level of more diverse responsibility, oversight and integration than that required in the applicant's role;

(iv) the applicant's role was a leadership role, but not a national leadership role, although there was some impact on other states.

(v) the applicant's role was focused on ACAP, while the new role covered the different Colleges within NPI, with a fundamental increase in scale and diversity in management and leadership;

(vi) the new role involved significant relational tasks beyond rolling out programs;

(vii) it was expected that the new role would require the application of substantial scholarly overview, a stronger emphasis to the provision of SLS to students and a very strategic and high level view taken as to how SLS services could be developed across the Colleges, recognising the diversity of student learning needs within those groups; and

(viii) the new role covered four campuses instead of one and about double the number of students.

[268] In my view Dr Dickson, as Dean of ACACP from February 2012 to July 2013 was well placed to be aware of, and familiar with the applicant's performance and management style. The two roles were substantially different both in scope of skills and responsibilities required.

[269] I would also add that contrary to the applicant's criticism of Dr Dickson, an employer does not have to conduct a full assessment of an employee's capacity to do a job. For example, in a management role, a prospective employee might have all the necessary qualifications for a position, be a brilliant academic, but be utterly unsuitable because of poor people management or leadership skills. For the sake of completeness, I am satisfied that Navitas was justified in forming the view that it would not have been reasonable to redeploy the applicant into the casual teaching role or the role based in Oxford, England.

[270] Pursuant to s 389(2) of the Act, I am satisfied that it would not have been reasonable, in all the circumstances, for the applicant to be redeployed to another position within the Colleges. I emphasise the phrase, 'in all the circumstances' because, in my opinion, these words empower the Commission to consider, not merely the skills, qualifications and experience of a redundant employee, but must include other circumstances the Commission considers relevant, as I have discussed in this decision.

[271] For the aforementioned reasons, I am satisfied that the applicant's dismissal was a case of 'genuine redundancy' within the meaning of s 389 of the Act. Navitas has complied with its consultation obligations under the Award and s 389(1)(b) of the Act. Further, it would not have been reasonable, in all the circumstances for the applicant to be redeployed within the employer's enterprise. Accordingly, it is unnecessary to consider whether the applicant's dismissal was 'harsh, unreasonable or unjust' within the meaning of s 387 of the Act. I uphold the respondent's jurisdictional objection.

[272] Accordingly, there is no jurisdiction for the Commission to determine this application for an unfair dismissal remedy. The application must be dismissed. An order to that effect will be published contemporaneously with this decision.

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