The attached document replaces the document previously issued with the above code on 9 July 2024.

Appearances and hearing details after the seal of the Commission have been corrected.

[2024] FWC 1793

Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - genuine redundancy - consultation requirements not met - dismissal unfair - compensation ordered

• [1] Mr Frederick Deon Du Preez was employed by MSWA Limited (MSWA) as a Finance Data Analyst on 20 June 2022. On 8 November 2023, MSWA ended Mr Du Preez's employment by way of redundancy. Mr Du Preez says his dismissal did not comply with the definition of genuine redundancy in s 389 of the Fair Work Act 2009 (Act). He says his dismissal is unfair.

• [2] I conducted a hearing to determine Mr Du Preez's application on 24 April 2024. Mr Du Preez represented himself and gave evidence in support of his case. I granted permission for Ms Julie Grant of Resolve Legal Solutions to represent MSWA. MSWA called Mr Johan De Coning (Head of Data Analysis and Reporting) and Mr Simon Jennings (Chief Information Officer) to give evidence.

• [3] I do not explore all the material the parties submitted though I acknowledge its importance to the people involved.

• [4] There is no contest, and I find, that:

(a) Mr Du Preez had completed the minimum employment period and was covered by the Multiple Sclerosis Society of WA (INC) Collective Agreement 2013 (MSWA Agreement). He was protected from unfair dismissal under s 382 of the Act;

(b) Mr Du Preez made his application within the time prescribed in s 394(2); and

(c) MSWA was not a small-business employer and so the Small Business Fair Dismissal Code did not apply.

• [5] Having considered the relevant evidence and submissions of the parties, I find that there were operational changes that meant MSWA no longer required Mr Du Preez's role to be performed by anyone. However, I also find that MSWA did not comply with the consultation requirements under the MSWA Agreement, and that Mr Du Preez's dismissal was unfair. I have found it appropriate to award Mr Du Preez $7,452.

2. Was Mr Du Preez's dismissal a genuine redundancy?

2.1 Did MSWA no longer require Mr Du Preez's role to be performed because of changes in its operational requirements?

What was Mr Du Preez's role at the time MSWA dismissed him?

• [7] The parties did not agree on what Mr Du Preez's role was at the time of his dismissal. Mr Du Preez says he was a Senior Data Analyst. MSWA says he was a Finance Data Analyst. I agree with MSWA.

• [8] Mr Du Preez was initially engaged as a Financial Data Analyst.[1] In or around August 2022, the Chief Financial Officer (CFO) told Mr Du Preez that he was relocating Mr Du Preez's role to MSWA's Business Intelligence (BI) department. Mr Du Preez then directly reported to Mr De Coning.

• [9] On 31 May 2023, Mr De Coning sent the following email to Mr Du Preez:

As mentioned before, I'm aiming to change your title to that of a Senior Data Analyst.

Please have a read through it and let me know if you think I've missed something or doubled up somewhere that's not needed.

If you're happy with this, I'll send it through to HR to create this in the system, and I'll see what other paperwork I need to do to get it changed for you."[2]

• [10] A copy of a draft job description (JD) was attached to the email. Mr De Coning also sent an identical copy of this email and draft JD to MSWA Data Analyst Jessica Yan.

• [11] Mr Du Preez replied to this email with suggestions to add in wording regarding some of the duties of his role.[3] There was no further correspondence regarding this title change.

• [12] Mr De Coning's evidence is that on or around June 2023, MSWA's CFO told him that everything was to be placed on hold for a while because Mr Jennings had been appointed as a new Chief Information Officer (CIO) and that any structural changes needed to align with Mr Jennings' plan for the BI Department.[4]

• [13] Mr Du Preez submits that this email constituted a formal change to his role. MSWA submits that it does not. I agree with MSWA. Mr De Coning's email is clear that he was "aiming" to change Mr Du Preez's title. Mr De Coning's email objectively is not an official offer or confirmation of change. Mr Du Preez's title and role as a Finance Data Analyst was unchanged.

What were the operational changes that led to Mr Du Preez's dismissal?

• [14] When Mr Jennings started as CIO in July 2023, he reviewed the structure and performance of the Data, Analytics and Reporting Team (Team) which includes the BI Department.[5]

• [15] On 17 October 2023, Mr Jennings sent an email to Mr De Coning and other senior MSWA employees. The email summarised changes for the Team, including that "the position of Financial Data Analyst is too narrow in scope and skill set, so is redundant in the new structure". The email also provided for the creation of a new Senior Data Analyst role, reporting to Mr De Coning, with two Data Analyst and two Data Engineer roles reporting to the Senior Data Analyst.[6]

• [16] Mr Jennings' email also included a schedule for rolling out the changes. These included meeting with impacted staff, advertising for the new Senior Data Analyst role and the interview process for the role.[7]

• [17] Mr Jennings' evidence is that the previous Senior Data Analyst JD was then amended to include new key responsibilities, including the provision of technical mentorship and leadership to the Team; qualifications in or knowledge of ITIL; and a history of creating, managing forecasting, planning models and advanced analytical technical skills such as SQL.[8]

• [18] Mr Du Preez agrees that the JD for the Senior Data Analyst role is different to the one he and Mr De Coning corresponded over in May 2023.[9] I accept Mr Jennings' and Mr De Coning's evidence that there was a restructure of the Team where the Finance Analyst Role was made redundant and other roles were created in the Team hierarchy. I find that there were operational requirements that led to MSWA making the role of Finance Data Analyst redundant.

2.2 MSWA failed to consult under the MSWA Agreement

• [19] A dismissal is not a genuine redundancy under the Act unless the employer has complied with the applicable consultation requirements.[10] In this matter, the applicable consultation requirements were clauses 11 and 16 of the MSWA Agreement.

• [20] Clause 11 of the MSWA Agreement ("Redundancy") states that where MSWA has decided to take action that is likely to have a significant effect on an employee or make an employee redundant, the employee is entitled to be informed as soon as reasonably practicable after the decision has been made (emphasis added). MSWA must then discuss with the affected employee the likely effects of the action or redundancy and measures that may be taken to avoid or minimise a significant impact.

• [21] Clause 16 of the MSWA Agreement ("Consultation regarding major workplace change") requires MSWA to notify affected employees where MSWA has made a definite decision to introduce major changes in production, programme, organisation, structure or technology (emphasis added). This clause expressly includes redundancies. MSWA must discuss with the affected employees the introduction of the major change; the effects the change is likely to have; and any measures to mitigate any adverse effects on the employees.

• [22] On 23 October 2023, Mr De Coning and Mr Jennings met with Mr Du Preez to inform him of MSWA's decision to make his role redundant. There were then further meetings on 1 November and 8 November 2023, where Mr Du Preez unsuccessfully applied for the new position of Senior Data Analyst.

• [23] MSWA submits that it has complied with its consultation obligations because it informed Mr Du Preez as soon as reasonably practicable after they decided to make the financial data analyst role redundant. I do not accept this submission.

• [24] The consultation obligations in the MSWA Agreement do not only apply when a decision has been made to make a role redundant. They apply where there has been a decision to take an action that is likely to have a significant effect on an employee or where there has been a decision to introduce major changes.

• [25] Mr De Coning's evidence is that in as early as June 2023 the CFO told him that there would be a review and changes to the Team's structure. Mr Jennings evidence is that when he started in July 2023, he reviewed the Team structure and "identified necessary changes and restructures required". MSWA advertised the additional Data Analyst and Data Engineers positions for the restructure in August 2023.[11] I find that MSWA decided to review and restructure the Team as early as June 2023 and did not inform Mr Du Preez as an affected employee until 23 October 2023.

• [26] I find that the decision to restructure the Team was an action that was likely to have a significant effect on an employee or constituted a decision to introduce major change. This means it triggered the consultation requirements in the MSWA Agreement.

• [27] On the evidence, it does not appear that MSWA even notified Mr Du Preez of the review and restructure. Mr Jennings consulted with "other leaders" in MSWA on how to plan and effect the restructure. He met with every executive, senior and middle manager to understand the Team and what was required moving forward.[12] However, Mr Jennings did not consult with Mr Du Preez. Even when it came to understanding Mr Du Preez's role, Mr Jennings did not go to the effort of speaking with Mr Du Preez, instead taking advice from Mr De Coning about what Mr Du Preez did.[13]

• [28] The point of the MSWA consultation requirements is to give affected employees the opportunity to be engaged in the process and have some buy-in over processes and decisions that may affect them significantly once there has been a decision to take action or introduce major change. Consultation is not merely telling an employee that they have been made redundant several months after a decision has been made to restructure their team.

• [29] MSWA did not comply with its consultation requirements under the MSWA Agreement in relation to Mr Du Preez's redundancy. The dismissal was not a case of genuine redundancy.

• [30] A dismissal is also not a case of genuine redundancy if it would have been reasonable in all the circumstances for the employer to redeploy the person within the employer's enterprise or that of one of its associated entities. The parties agree that MSWA did not offer Mr Du Preez any redeployment options. The parties disagree over whether it was reasonable to redeploy Mr Du Preez into the Senior Data Analyst or Data Analyst role. This disagreement is rooted in the parties' differing views on Mr Du Preez's technical proficiency.

• [31] I accept Mr De Coning's and Mr Jennings' evidence that the reformulated Senior Data Analyst role required a level of technical expertise that Mr Du Preez does not have.

• [32] I also accept that it was not reasonable to redeploy Mr Du Preez into the newly created Data Analyst role given that it required SQL expertise that Mr Du Preez did not have. It also would have decreased Mr Du Preez's salary by anywhere between $15,000 to $19,000 per annum.[14]

• [33] As MSWA cannot rely on the defence that Mr Du Preez's dismissal was a genuine redundancy, I will now consider the criteria in s 387 of the Act.

Section 387(a) - was there a valid reason for the dismissal related to Mr Du Preez's capacity or conduct?

• [34] Mr Du Preez submits that there was no valid reason for the dismissal relating to his capacity or conduct. MSWA submits that there was a valid reason as Mr Du Preez's role as a Financial Data Analyst was redundant.

• [35] I do not accept MSWA's argument. Section 387(a) requires a valid reason regarding Mr Du Preez's capacity or conduct. Redundancy is not a valid reason relating to capacity or conduct. However, it is a factor that I consider later in this decision pursuant to s 387(h).

• [36] I am satisfied that there was no valid reason for Mr Du Preez's dismissal related to his capacity or conduct.

Section 387(b) and (c) - notification of valid reason and opportunity to respond

• [37] Mr Du Preez was informed of his redundancy on 23 October 2023. The reason for his dismissal did not relate to his capacity or conduct. A consideration of whether he was given an opportunity to respond to the reason for dismissal relating to capacity or conduct is a neutral consideration.

Section 387(d) - any unreasonable refusal by the Respondent to allow Mr Du Preez a support person

• [38] The evidence does not suggest that Mr Du Preez requested a support person. I find this to be a neutral consideration in this matter.

• [39] This was not a relevant consideration in this matter.

Section 387(f) and (g) - size of the Respondent's enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed

• [40] As per MSWA's Form F3 filed in this matter, MSWA has 822 employees. MSWA submits that it is a not-for-profit organisation and does not have in-house legal advisors to advise on the genuine redundancy process. MSWA did not lead any evidence to support this point. I find that this is a neutral consideration in this matter.

Section 387(h) - any other matters the Commission considers relevant

• [41] Operational reasons: Though MSWA failed to consult with Mr Du Preez on the restructure before it occurred, I accept that there were genuine operational reasons for the restructure.

• [42] Age: Mr Du Preez is 60 years old. He submits it will be difficult for him to secure comparable employment.

• [43] The majority in UES found that a "failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable".[15] All factors in s 387 must be considered and weighed.

• [44] I have given weight to my finding that there were bona fide reasons for MSWA's restructure of Mr Du Preez's team. However, I have also given considerable weight to my finding that MSWA did not comply with the consultation requirements in the MSWA Agreement. The requirement to consult, especially on matters such as redundancy, should never be taken for granted. It gives employees the potential to affect the end outcome, which can include averting the need for their role to be made redundant or otherwise mitigating the effect of a redundancy.

• [45] Considering all the factors in s 387, I find that the failure to consult Mr Du Preez makes the decision to dismiss him unreasonable. I am therefore satisfied that Mr Du Preez was unfairly dismissed.

• [46] I directed the parties to provide submissions and material on remedy. Neither party made comprehensive submissions on this issue. I have made my considerations based on the submissions and evidence provided.

• [47] Section 390 of the Act sets out when the Commission may order reinstatement or compensation. I am satisfied that Mr Du Preez made an application for unfair dismissal, is a person protected from unfair dismissal and was unfairly dismissed.[16]

• [48] Mr Du Preez seeks compensation. He seeks an award of 20 weeks' wages.

• [49] Whether to order a financial remedy remains a discretionary question.[17] Section 390(3)(b) requires I must take all circumstances of the case into consideration.[18]

• [50] I consider the criteria in the Act below.

• [51] Effect of the order on the viability of MSWA's enterprise:[19] Neither party made any submission on this point. I am satisfied that an award of compensation would not affect MSWA's viability.

• [52] Length of Mr Du Preez's service:[20] Mr Du Preez worked for MSWA for a little over a year. I do not make any deduction for this.

• [53] Remuneration that Mr Du Preez would have received:[21] Had MSWA complied with the consultation requirements in the MSWA Agreement, I estimate that Mr Du Preez would have remained in employment for a further three weeks. Mr Du Preez would have earned $7,452.[22]

• [54] Efforts to mitigate the loss because of the dismissal_:_[23] Mr Du Preez commenced new employment on 8 January 2024 where he earns $64.90 per hour. I am satisfied he has made attempts to mitigate his loss.

• [55] Remuneration earned:[24] MSWA paid Mr Du Preez two weeks' notice and four weeks' redundancy pay in addition to any accrued leave entitlements. These payments would still have been made on termination of Mr Du Preez's employment at the end of the anticipated period of employment. I have not adjusted the compensation amount on account of this.

• [56] Income reasonably likely to be earned_:_[25] I find that Mr Du Preez is reasonably likely to continue earning at the rate of $64.90 per hour in his current job between any order for compensation and actual compensation.

• [57] Other relevant matters:[26] No such matters were raised.

• [58] There is no reason to adjust the amount of compensation for misconduct.

• [59] I am satisfied that it is appropriate to order payment of $7,452 gross having regard to all circumstances of the case. This amount reflects my estimate of Mr Du Preez's likely loss had the dismissal not occurred when it did. It does not include any amount for shock, distress or humiliation and does not exceed the statutory cap. I leave the question of taxation up to the parties.

(a) MSWA is to pay Mr Du Preez a gross amount of $7,452;

(b) MSWA is to deposit 11.5% superannuation on the compensation amount into Mr Du Preez's nominated superannuation fund; and

(c) MSWA is to comply with the above orders within 14 days of the date of this decision.

[1] Digital Court Book (DCB) page 13.

[15] UES v Leevan Harvey [2012] FWAFB 5241 at [49].

[17] Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter [2014] FWC 3574 at [9].

[18] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431 at [40].

[22] Mr Du Preez's base annual salary was $129,168. See: DCB page 40 at Q2b.; Form F3, Q1.5.

Printed by authority of the Commonwealth Government Printer