As no response was forthcoming to the 16 April letter, the respondent requested a response from the applicant.

Thank you for your email and letter, received today.

I saw my treating doctor for final check up yesterday and got an updated medical certificate, refer attached.

Considering my recent treatment and health condition, I would like to get back to work, starting on a part time basis, for example, 2-3 days per week, and progressively move to full time.

I would like to start work on Tuesday, 1 July and will be able to fulfill my duties as outlined in my JD.

Happy to meet with you in June to discuss arrangements moving forward.

The respondent requested the applicant's doctor advise of the applicant's current and future capacity to return to her pre-illness position.

The applicant responded as follows, attaching a second medical assessment:

As requested, please refer to the attached letter signed.

Just incase [sic] you are unfamiliar, as stated by the doctor in the letter:

Moving forward, I would like to finalise my return to work date on 26 August 2014 (or later), starting 2 days a week, Tuesday and Thursday.

Mr Tang, HR Executive Manager, responded to what he understood from the above to be the applicant's request for a flexible work arrangement. He said:

The Assessment indicates that you are likely to be fit to carry out your pre-illness duties from August 2014, on a part-time basis. We understand it is your preference to return to work two days per week; being Tuesdays and Thursdays.

As you are aware, there are a number of duties associated with the Position (as set out in the enclosed copy of the Position Description), which include, but are not limited to:

• participating in regional sales and marketing meetings;

• acting as Event Manager on behalf of the Company at marketing events, trade exhibitions etc, outside of ordinary hours; and

• interstate and international travel, particularly outside of ordinary hours.

The nature of the Position requires the duties associated with the Position to be discharged on a full-time basis in order that the Company's business requirements are adequately met. Further, we note that working part-time is insufficient to properly discharge the inherent requirements associated with the Position as outlined above, especially given the travelling and other marketing activities typically occur outside of ordinary business hours.

On this basis, the Company must unfortunately reject your Request on business grounds.

Should you have any questions arising out of this letter, please do not hesitate to contact me.

When I requested to return to work on part time basis, it was only meant to be temporary arrangement.

Perhaps for one or two months (part time) and progressively move on to full time. The request for part time was never intended to be permanent.

It will also be beneficial for the company to have my assistance on part-time basis, and eventually progressing to full time. I am very confident that I will be able to manage the role with ease.

Please let me know if I can start part time basis for at least 1 month (e.g. September) which will not clash with events, especially Sydney Festival, which is the major event in January.

We refer to your two emails sent on 10 July 2014 and thank you for the additional information you have provided.

We note that you have now indicated that you wish to return to work two days per week on a part-time basis in September 2014 for at least one month, moving to four days per week and progressively returning to full-time work.

The Company has considered the further information you have provided to us in the two emails, but note that such information is not supported by medical evidence. Notwithstanding this, the Company requires the duties associated with the Position to be carried out on a full time basis, for the reasons set out in its letter to you dated 9 July 2014.

Unfortunately, the Company must maintain its rejection of your Request for the reasons set out in the 9 July2014 letter.

We ask that you continue to keep the Company informed as to your medical condition.

Should you have any questions arising out of this letter, please do not hesitate to contact me.

The respondent requested that the applicant attend a meeting on 25 July 2014 to discuss a restructure of China Southern Airlines and 'consequential changes to your employment'.

Due to urgent personal reasons I had to make a trip overseas.

As I did not get a confirmation on a final return to work date, I booked and confirmed my flight back to Sydney on 17 August 2014.

Under the circumstances, would it be possible to reschedule the meeting with yourself and John, on Friday 22 August 2014.

Alternatively, if it is required to discuss prior to my return, we can organise a phone conversation at a suitable date and time.

The applicant was advised her position 'will be made redundant' (see para [5]).

As the respondent had received no reply to its letter of 25 July, it extended the deadline for her response until 30 July 2014.

From my understanding of the letter, it clearly states the decision has already been made about my role being redundant.

Do forward the confirmation with the necessary, final terms, etc.

The respondent confirmed the applicant's redundancy and gave details of termination payments.

[50] After outlining the chronology of events in his first statement, Mr Edward provided a second statement in which he agreed the applicant's terms and conditions of employment were governed by the Award. He believed that the respondent had complied with its obligations to consult with the applicant, under cl 9 of the Award, in respect to the respondent's restructure of the business. He relied on various letters and emails referred to in the above chronology.

[51] Mr Edward said that the respondent currently employs only two full time direct reports to the Regional Marketing Manager, being the Marketing Manager and Creative Designer. Neither of these two positions were considered reasonable redeployment opportunities for the applicant. The first was a significantly lower level position to that which the applicant had enjoyed and the applicant did not have the requisite design skills for the second position.

[52] Mr Edward said it was the respondent's business imperative to implement a restructure of its business by re-evaluating the Sales and Marketing Department and having the Australian and New Zealand marketing operation headed by one person, a Regional Marketing Head, responsible for:

(d) Regional Ticketing & Reservations Department; and

[53] It was Mr Edward's evidence that during the applicant's absence, her duties were assumed, partly by himself and partly by the Marketing Coordinator. The Regional Marketing Manager now performs the remainder of the applicant's duties. This meant the respondent no longer required the applicant's position to be performed by anyone. From August 2014, the new structure was put in place. However, the restructure is ongoing and is yet to be completed. Mr Edward attached the business's organisational charts before and after the restructure.

[54] In further evidence in chief, Mr Edward described his role as Regional Commercial Director. He said that China Southern Airlines has commercial aviation operations in Australia and New Zealand with aircraft flying in and out of five specific locations - Sydney, Melbourne, Perth, Brisbane and Auckland. The recent changes have arisen due to increased capacity and aircraft size. This required a re-examination of all aspects of marketing, sales, distribution, reservations, ticketing and contracts in order to increase market share in Australia and New Zealand. There was also a need to centralise decision making. The proposed changes and associated restructuring commenced in April 2014 and were ongoing. Discussion first began in relation to reservation and ticketing in or around May 2014 and the marketing area was discussed with senior management. However, all employees would have been aware that a blanket restructure was being considered as a result of his engagement as Executive Manager, Projects.

[55] Mr Edward conceded that there had been no meetings with staff to convey information about the restructure process. However, he asserted that employees would have known about it, because certain people were missing from key roles. Mr Edward further explained that official confirmation was not conveyed to employees because the respondent did not want the staff to panic or become anxious.

[56] As a result of the restructure of the Marketing Department, Ms Amalaya Rattanathasaniya became Regional Marketing Head for Australia and New Zealand. Mr Edward firmly believed her role was very different to that of the applicant, although he acknowledged that he had not worked with the applicant or observed her work.

[57] Mr Edward's evidence detailed the reasons for the creation of the new role in the following exchange:

In my opinion, in my expertise and the role that I am currently in now it was my opinion that we needed to take the role to a whole new dimension. And that dimension, as mentioned before, encompassed not only branding, sponsorships, being able to utilise and leverage the sponsorships that we currently had being Melbourne Festival, Sydney Festival, Melbourne Football Club AFL - in my opinion, my observations, my due diligence going through the whole aspect of the restructuring was the role was not being taken to those levels. It was not being leveraged.

To maintain our market share, to increase our market share, and most importantly to hit our targets. See, you know, I have - most of my department heads were direct reports, have very long and complex KPI's. Coming into this role there was no key business indicators in place. Not only that there were no performance management systems. I brought all those on board. So then I can confidently measure what these individuals' input and output is. Prior to that that was never brought on. Now, the role of Rattanathasaniya was also a key component to bring on these performance management systems and KPI's as well. So her input, what she was bringing to the table as far as the new regional marketing head for Australia and New Zealand role was a critical component, to not only advise me, but also prompt me that these are the areas that we needed. Now, that was clearly a deficiency that wasn't there before.

[58] Mr Edward elaborated on the absorption of the applicant's duties during her absence. These duties were shared between Mr Michael Davies, Mr Derek Morris, Mr Bill Bryan and Mr Henry He. When he was appointed in April 2014, Mr Edward also assumed some of the applicant's duties. Ms Lily Amar had also undertaken the applicant's administrative duties and continues to perform these duties.

[59] In oral evidence, Mr Edward described the differences in the two roles as follows:

What differences, if any, were there - sorry, I think my question was - could you please describe to the Commission the key differences between the two roles?

Sure. I believe one role was a role that was fulfilling or undertaking the deployment of the duties that were required as far as the role of marketing, branding, sponsorship as such. The other role was Rattanathasaniya's role.

Sorry, which other role? Could we be clear? The new role?

Yes. Well, the previous statement I made was for the - Anesha's role - and the new role, as far as Rattanathasaniya is concerned was a more strategic role, a planning role, an analytical role, and understanding of what further marketing duties, branding, sponsorships, a return on investment that needed to be undertaken to take us to a level of not only increasing market sharing and hitting our specific targets as far as revenue targets are concerned, but having the ability to look at the new world that we live in today, and that is a digital world and that is a social and corporate media world and I simply wasn't seeing that on what I had observed and what I had been briefed on prior to Rattanathasaniya being appointed.

Was there a geographical or territorial difference between?

Yes, of course. One was Australia and the role was - - -

Pardon? Anesha. Her role was for Marketing Communications Manager, Australia.

Regional Marketing Head, Australia and New Zealand.

So she was responsible for the entirety of the ANZ operations - the new role?

[60] Mr Edward said that having examined other options for redeploying the applicant to another position, he had determined that none were available. He emphasised that the new role was full time. It required the person to attend functions and meetings outside of business hours and demanded a significant amount of domestic and international travel, which was expected to be undertaken on weekends. Mr Edward confirmed that the salaries of the two roles were the same.

[61] In cross examination, Mr Edward said that despite her opinion that she could progressively return to full time work in one or two months, the timing of the applicant's return to full time work was not clear. The respondent had no medical evidence supporting her opinion at this time.

[62] Mr Edward was asked what had changed over the six day period between the first discussion about a return to work and the discussion about restructure and redundancy. He stressed his view that the role was full time, not part time.

[63] Mr Edward conceded that there had been no meeting with the applicant, either face to face, or over the phone (as she had suggested). This was because she was overseas and he understood that Mr Tang had made several unsuccessful attempts to call her. In re-examination, Mr Edward said the respondent had not known exactly where she was; either Singapore or Malaysia. However, he believed there had been email communications between the applicant and Mr Tang.

[64] Mr Edward agreed that the applicant was made redundant on 1 August 2014 and Ms Rattanathasaniya applied for the new role on 6 August 2014. Mr Edward said he had previously worked with Ms Rattanathasaniya at Qantas Airways and Malaysian Airlines and that he had 'head-hunted' Ms Rattanathasaniya. However, he could not recall when he had called her before she submitted her application for the new role. When pressed, he said it was not in July 2014 and must have been between 1 and 6 August 2014. When shown Ms Rattanathasaniya's resume, Mr Edward agreed her direct marketing experience dated from July 2007.

[65] As to the applicant's former duties, Mr Edward acknowledged that he had never observed the applicant at work. However, he knew what her duties were, because he had been briefed by other staff and he had, in fact, performed some of her duties himself.

[66] In answering questions about the business organisational charts, Mr Edward said that the pre-restructure chart disclosed very blurred responsibilities. He denied that the only change in the restructure was to the marketing role -all four regional heads' roles were modified. In respect to reservations and ticketing, the respondent has only one current employee out of a head count of four.

[67] The applicant has eleven years' experience in sales and marketing and eleven years' experience in the travel industry. She holds a Masters of Education majoring in Management and Human Resource Development and a Bachelor of Arts, majoring in Linguistics and Education. She attached her resume and job description to her statement.

[68] The applicant's former role involved the planning and budgeting for marketing. She described herself as 'Head' of the Marketing Department. She said that she regularly liaised with relevant stakeholders in New Zealand and had one direct report - the Marketing Project Coordinator. The applicant said she had worked closely with Mr Michael Davies, a graphic designer who was contracted to the respondent. As she allocated him work, reviewed his work and determined the scope of his work, she believed he reported to her in a practical sense.

[69] The applicant believed that the new role proposed by the respondent was the same as the one she had previously performed, only with a different title. She sought to demonstrate this by comparing the tasks she had performed against the job description for the new Regional Marketing Manager's role. The applicant believed her role was the only one made redundant by the respondent and that Mr Edward's reliance on the organisational charts pre and post the restructure, were inaccurate and misleading.

[70] The applicant said that she would have accepted a lesser role of Marketing Coordinator if it had been offered, because she had been seeking a graduated return to work after a long medical absence. As it was less senior and had less responsibility, it would have had the benefit of causing her less stress and allowed her more time to focus on her recovery.

[71] The applicant referred to the chronology of events (see para [49]) by reference to the period she was in Singapore to be with her family for emotional support. She believed that her position was made redundant by 25 July 2014. There had been no consultation with her about her redundancy. She had hoped that the respondent would wait until her return from overseas, to hold a discussion with her as envisaged in its email of 22 July 2014.

[72] The applicant had consistently told the respondent that she had hoped to return to full time work over a graduated period. On 12 June 2014, her doctor had confirmed her fitness to return to work.

[73] Mr Michael Davies is a graphic designer. He owns his own business, Design Strategy Pty Ltd, which contracted to the respondent. Mr Davies provided a statement to the proceeding, but was not required for cross examination.

[74] It was Mr Davies' evidence that he worked around 30 hours per week and was located in the respondent's office at a desk adjacent to the applicant's desk. Mr Davies described his relationship with the applicant as a 'close working relationship' in that he prepared and provided design briefs to her in her role as Marketing and Sales Communication Manager. He believed her role was to:

a) liaise with other departments and individuals within the respondent's organisation (such as Sales, Pricing and the General Manager) and with the regional airport sites;

b) oversee the design of marketing strategies and campaigns;

d) oversee the implementation of marketing strategies and campaigns; and

e) manage the respondent's marketing budget and its allocation to particular campaigns.

[75] While Mr Davies reported directly to Mr Henry He, he was allocated design tasks by the applicant. Mr Davies recalled Mr Edward's arrival as the Commercial Director and a meeting with staff in or around September 2014, during which Mr Edward announced that the applicant would not be coming back as a 'new girl' had been found to 'take over' (Ms Rattanathasaniya).

[76] Mr Davies stated that he had been unaware of any restructure of the Marketing Department (which he worked in). He had not noticed any new roles or jobs created or roles or jobs which were no longer needed. He experienced no change in his own role as a graphic designer.

[77] Mr Davies had worked closely with Ms Rattanathasaniya, until his contract with the respondent ended. From his own observations, he believed that Ms Rattanathasaniya's role and functions were the same as the applicant's.

[78] Mr Morris provided a statement in the proceeding, but was not required for cross examination. Mr Morris was engaged in a consultant role as a Senior Advisor Business Development from February 2012 to January 2015. He was the applicant's Manager until 30 June 2014, although she had been on extended sick leave from late August 2013.

[79] Mr Morris observed the applicant perform the following tasks and duties:

a) managing human resources in the Marketing Department;

c) determining marketing strategies, objectives and priorities and developing a marketing plan;

d) liaising with internal departments and external suppliers and distributors to facilitate the preparation and implementation of marketing strategies; and

[80] It was Mr Morris' evidence that for approximately ten months, the applicant's tasks and duties were absorbed by himself, Mr Davies and Ms Ma and then later by Mr Edward when he took on the management of the marketing and sales team in July 2014. Around this time, Mr Morris relinquished responsibility for sales and marketing, but otherwise could not recall any significant restructuring of the business.

[81] Mr Morris recalled that, at a regional sales and marketing meeting in July 2014, Mr Edward gave a powerpoint presentation and showed an organisational chart. At the time, Mr Edward had said: 'We look forward to welcoming Anesha back to work'.

[82] Mr Morris was unaware of the applicant's termination of employment or that she had been made redundant until he was told by colleagues that she would not be coming back. He had not been surprised, because the tasks the applicant had been performing had been undertaken by others. About 4-6 weeks later, Mr Morris became aware of Ms Rattanathasaniya's appointment. Mr Morris no longer was the Manager of the position as Ms Rattanathasaniya reported to Mr Edward. However, he continued to work closely with Ms Rattanathasaniya and attended weekly meetings with her in which she provided updates on the work she had undertaken.

[83] In written submissions, Mr Davies put that the respondent still required the applicant's job to be performed by someone and the supposedly new role of Regional Marketing Manager simply replaced her role. Even if it was a redundancy, the respondent had failed to comply with its consultation obligations in relation to the redundancy of the applicant's role and any possible redeployment. In fact, the respondent had not properly considered whether it would have been reasonable to redeploy the applicant within its business. Mr Davies refuted the respondent's claim that the restructure had taken place for a genuine business need. For these reasons, the dismissal of the applicant was not a 'genuine redundancy', within the meaning of s 389 of the Act.

[84] Mr Davies noted that the respondent bore the onus of proving, on the balance of probabilities, that the dismissal of the applicant was a 'genuine redundancy'; See: Kekeris v A Hartdrodt Australia Pty Ltd t/as a.hartrodt [2010] FWA 674.

[85] Mr Davies said that where a new employee, even a senior one, with skills not possessed by any other employee, performed the same job as the applicant, it was clear that the respondent required the job to be done by someone; See: Rosenfeld v United Petroleum Ltd T/A United Petroleum [2012] FWA 2445 ('Rosenfeld v United Petroleum'). An allegation that the new role requires higher qualifications will not support a finding of 'genuine redundancy' where the duties to be performed are the same; See: McIllwraith v Toowong Mitsubishi Pty Ltd [2012] FWA 9662 ('McIllwraith v Toowong').

[86] Mr Davies put that the evidence of the applicant, Mr Davies and Mr Morris all supported a finding that the applicant had performed the same 'job dimensions' of the Regional Marketing Manager, on a day to day basis. In any event, there was no substantive analysis of the difference between the two roles and the reality was that the differences between the roles were, at best, superficial. The respondent had not provided any evidence corroborating Mr Edward's bare evidence in relation to the restructure. Mr Davies pointed out that the applicant had been regularly involved in work for the New Zealand market. While the new role had an extra report (the Creative Designer), this work had previously been carried out by an independent contractor who was managed on a practical day-to-day basis by the applicant. While the new role required that the successful candidate hold a Bachelors Degree in Business Management and a Masters Degree in Business Administration, the applicant held a Bachelors Degree in Arts and Masters of Education, specialising in Management and Human Resource Development and had 11 years of marketing experience. Her qualifications were commensurate with the formal requirements of the new role.

[87] Mr Davies submitted that the Commission should consider the respondent's reasons for dismissal in determining whether the termination of employment arose from 'genuine operational reasons'. The witness credibility of the decision maker was relevant to this determination; See: Boeing Australia Ltd [2007] AIRCFB 730. It was relevant that the applicant was the only employee who was dismissed during the restructure, that the Marketing Department was the only department restructured up to August 2014 and that the applicant had made attempts to return to work after a serious illness. Mr Edward's previous work experience with Ms Rattanathasaniya and the fact that she had applied for the role within one week of the applicant being made redundant, were also relevant factors. These circumstances, and the respondent's failure to comply with the its obligations to consider redeployment and consult with the applicant, should lead to the Commission forming a view, on the balance of probabilities, that the real reason for the applicant's termination was her cancer illness, which had caused her to take a significant period of leave and was at risk of recurrence.

[88] Mr Davies referred to Piper v Pacific Coast Contractors Pty Ltd T/A Hope Estate Wine Group [2014] FWC 2891, in which the Commission had examined the consultation provisions of the Commercial Sales Award 2010 [MA000083], which are in the same terms as those under the relevant Award in this case. It was not sufficient for an employer to simply inform an employee of its decision; there must be a genuine discussion directly with the employee, with particular reference to the nature of the changes, its expected effects and how any adverse impacts on an employee, could be mitigated.

[89] Mr Davies referred to the correspondence from the respondent to the applicant of 25 July 2014 (see para [5]), which simultaneously advised of a definite decision that the applicant's role was redundant, and to the respondent not having made a final decision as to the implementation of the restructure. On receiving this email, the applicant was entitled to form the view that the respondent had already made the decision to make her redundant. It could not be said that this correspondence constituted a genuine discussion of the matters, as required by cl 9(b)(i) of the Award. The respondent should have considered the applicant's request for a meeting in person after she returned from overseas, or by telephone at a mutually convenient time. The respondent had given the applicant insufficient information about the new role and its reporting lines. She was only invited to provide suggestions on the implementation of the timetable of the decision to make her role redundant.

[90] While the applicant did not accept that the new role was different to the old role, Mr Davies made alternative submissions on the question of whether it would have been reasonable for the applicant to have been redeployed. He said that the question of whether redeployment was suitable would depend on the comparative skill sets and remuneration, amongst other things, of the two roles. It does not require that every open position be identified; See: McAlister v Bradken Limited [2010] FWA 203. However, it does not follow that the employer should form its own view as to how an employee will respond to a particular redeployment offer; See: Margolina v Jenny Craig Weight Loss Centres Pty. Ltd. [2011] FWA 5215. He noted that the applicant had given evidence that she would have considered lower paid or part time roles and the respondent was required to consult with her as to the appropriateness of redeployment to any such roles. It failed to do so.

[91] Mr Davies submitted that the respondent should have considered redeploying the applicant into the subordinate role of Marketing Coordinator and that this option should have been addressed during the consultation process. The respondent had given evidence that this role was at a lower level and involved some of the applicant's previous duties. However, it had produced no substantive evidence as to the roles and duties of the Marketing Coordinator and the crossover between the duties of this role and the applicant's role. As the respondent had not provided any material which corroborated its assertion that it had truly considered the redeployment of the applicant, the Commission should conclude that no such consideration had taken place.

[92] Mr Davies said that the applicant was not even advised of the ongoing existence of this role. The applicant's evidence was that, in light of her long absence, age, recent illness and in the interests of minimising stress and disruption, she would have accepted the role. The respondent should have provided the applicant with a relevant position description and consulted with her as to her suitability for redeployment. This was a further failure of the respondent to comply with its consultation obligations under the Award.

[93] In oral submissions, Mr Davies highlighted the evidence of Mr Edward, which disclosed that there had been no meetings arranged by the respondent to communicate the restructure to its staff. Mr Edward had said that while he had never actually directly observed the applicant's work, he had gained his understanding of her job through perusing her job description. He had also acknowledged that Ms Rattanathasaniya was paid at the same level as the applicant and had less work experience, Mr Edward had given evidence that he had 'headhunted' her for the role. Given this evidence, the Commission could come to the conclusion that there had been a simple replacement of the applicant by Ms Rattanathasaniya.

[94] While Mr Davies acknowledged that consultation in person would have been difficult while the applicant was overseas, there was no reason why a telephone conversation could not have taken place. This was relevant to a finding that there was no genuine consultation with the applicant as to her redundancy.

[95] In relation to redeployment, Mr Davies put that that Mr Edward's evidence that the relevant roles were 'inherently full time' supported a finding that the applicant's request to return to work part time, was simply dismissed out of hand.

[96] In written submissions, HWL Ebsworth put that the Commission was precluded from making any orders for a remedy for unfair dismissal, as the dismissal of the applicant was a 'genuine redundancy', within the meaning of s 389 of the Act. As the redundancy had occurred in the context of a redistribution of duties, the Commission was required to determine whether the applicant had any duties left to discharge; See: Ulan v Howarth.

[97] Relying on the evidence of Mr Edward, the respondent submitted that there were no longer any duties left for the applicant to perform after 1 August 2014 and her job ceased to exist by reason of the restructuring of the Regional Marketing Department. Her dismissal was a case of 'genuine redundancy' as the restructure was necessary to improve business performance and efficiency in a broader commercial setting. Options for redeployment of the applicant were considered, but none were available. The employer had complied with its obligation to consult the applicant in accordance with the Award. It provided the applicant with information on the restructure and had made efforts to consult with her, while she was overseas.

[98] In oral submissions, Ms Thew referred to authorities of the Commission which demonstrate that there is a 'genuine redundancy' where an employee's duties are redistributed among the employer's other staff, including new staff; See: Ulan v Howarth.

[99] Ms Thew referred to Mr Edward's evidence that a new role was created to take advantage of marketing opportunities and to better utilise its leverage with the respondent's existing sponsorships. Mr Edward had identified that this was necessary to increase market share and meet sales targets. Key performance indicators and performance management systems were to be progressively put in place across the Australian and New Zealand operations.

[100] Ms Rattanathasaniya was recruited to drive all of the sales and marketing functions of the business. The new role was more strategic, being an analytical role requiring an in-depth knowledge and understanding of marketing opportunities, branding and sponsorships. The previous role had no New Zealand wide responsibilities and was limited geographically and only to marketing communications. While the applicant may have believed she was Head of Marketing, that is not how the business viewed her or what she was employed to do. While she was on extended leave, all of her duties had actually been absorbed by other persons (Mr Davies, Mr Morris, Mr Bryan, Mr He and Mr Edward). Mr Edward was also clear that each of the States had their own Sales Manager.

[101] Ms Thew dealt with the applicant's main argument that there were no discussions with her about redeployment. The applicant had provided medical evidence that she could only return to work for two days per week, whereas all the redeployment opportunities and even the new Regional Marketing role were full time. As this was not a workers' compensation case, there was no positive obligation on the employer to accommodate an employee's illness on a part time basis. Ms Thew further speculated that had this claim been brought under discrimination law, there would still be a requirement to consider any unjustifiable hardship on the employer to offer a part time position, where its operational requirements did not justify such a position.

[102] Ms Thew submitted that the only medical evidence was that the applicant could return to work on a part time basis and there was only the applicant's opinion that such an arrangement was to be temporary for 2-3 months. There was simply no medical evidence to conclusively indicate when the applicant could return to full time work. Moreover, the applicant's work flexibility request was refused on genuine business grounds.

[103] In any event, Ms Thew relied on Mr Edward's evidence that he had made an assessment of what the applicant's duties had been, her experience, skills and expertise and determined she was not the appropriate person for the new role. He was able do so, even without taking into account the new full time role was more demanding. Ms Thew noted that the less senior administrative role was already filled by Ms Lily Amar.

[104] Ms Thew distinguished the authorities relied upon by Mr Davies. This was not a case where the same job was filled by someone with higher skills and qualifications, as in Rosenfeld v United Petroleum and McIllwraith v Toowong. The new role was a demonstrably different and higher level role.

[105] Ms Thew noted that Mr Edward had considered two positions which the applicant might have been able to fill, both of which were unsuitable. Moreover, the applicant had been invited to put forward her views of the restructure - not once, but three times - and she did not do so. Communications had occurred by email, because the applicant was overseas. Ms Thew emphasised that the respondent had followed up the first email advising of the restructure, but the applicant did not respond. Ms Thew put that in its letter of 25 July 2014, the respondent had been attempting to comply with its Award obligations, notwithstanding the applicant was told her role was redundant.

[106] In a discussion with the Bench about consultation, Ms Thew claimed it was common knowledge that the restructure was taking place and senior management had been informed in May 2014 after Mr Edward's appointment in the previous month.

[107] On behalf of the applicant, Mr Davies put, quite bluntly, that the real reason for the applicant's termination was her cancer illness and the significant period of leave she had been required to take in 2013 and 2014, with a real risk of recurrence of her cancer and further leave being necessary.

[108] It is significant that Mr Davies did not directly put to Mr Edward that this was the real reason for the applicant's dismissal or that her redundancy was a sham. Given the preparedness of the respondent to give the applicant extended time off and its compassion and understanding of her unfortunate medical circumstances, I do not consider that the applicant has been able to prove, on the balance of probabilities, that the respondent was engaged in an elaborate masquerade to get rid of her by creating a false redundancy scenario and conceal the real reasons for the applicant's dismissal.

[109] Three major considerations draw me to this conclusion.

[110] Firstly, in my opinion, the respondent had actually and practically changed the applicant's role, not only geographically (by adding New Zealand to its reach), but also in a real and genuine operational sense by wanting to give the role a greater level of seniority and authority over all of the respondent's marketing functions in order to improve its existing leverage and business opportunities in the market. I accept that this flowed from a genuine desire of the respondent to increase its market share in Australia and New Zealand and improve efficiencies and its effectiveness in the Sales and Marketing Department.

[111] Secondly, I accept the submission that the respondent required the new and enhanced role to not only be full time, but also involve considerable 'out of business hours' activity in travel and attending marketing and promotional events. In the absence of clear medical evidence, I accept that the respondent could not be confident of when the applicant could return to full time duties, notwithstanding her own opinion that it might be two to three months. In addition, I do not consider that the tertiary qualifications for the new role were commensurate with the qualifications held by the applicant.

[112] On one view, offering the applicant more time to return to full time work might not appear to be unreasonable, especially given the many months the respondent had operated (seemingly without much dislocation) during the applicant's absence. However, I accept that the business imperative of the respondent was such that it had little choice but to make the applicant's position redundant in the circumstances I have described above.

[113] Thirdly, I found Mr Edward to be a frank, sincere and believable witness. When required to answer questions which were obviously against the respondent's interests, he did not obfuscate or avoid answering the question. I have no reason to doubt that Mr Edward was brought into the business to identify and implement changes to improve the respondent's business opportunities. The fact that his handling of the applicant's redundancy was less than optimal in terms of consultation with her, does not, in my opinion, impugn Mr Edward's motives or his evidence generally.

[114] While I accept that Mr Davis and Mr Morris had both worked closely with the applicant (Mr Morris less so), neither of them were actually employees of the respondent and would not have been privy to the decision making process of the respondent in respect to the restructure and the business imperative for it. Given their different roles with the business (graphic design and business development respectively), it is not entirely clear how they could positively conclude, on an objectively informed basis, that the applicant's role was no different to the new role. It is telling that Mr Morris' evidence corroborated Mr Edward's evidence that the applicant's duties had been absorbed by himself and other staff during her lengthy medical absence.

[115] In my view, the implied criticism of Mr Edward in respect to 'head hunting' Ms Rattanathasaniya for the new role in a short period of time and the fact Mr Edward had previously worked with her, does not lead to any adverse findings against the respondent. Nor do I think the criticism of the respondent's organisational charts point to a finding of some sham redundancy arrangement.

[116] Nor do I consider the short period of six days between the email discussion between the applicant and the respondent, about a return to work and then about the applicant's redundancy, positively demonstrates an ulterior motive of Mr Edward to quickly get rid of the applicant. The fact was that Mr Edward had been brought into the Company in April 2014 to recommend improving its performance. There was simply no evidence that he was brought in for the purpose of, or was directed to get rid of the applicant by creating a false redundancy scenario.

[117] Mr Davies' emphasis on these matters appears to infer a wider conspiracy, involving a number of others and an elaborate time consuming scheme. However, the evidence does not support such a conclusion. These were matters peripheral to, but consequential to the decision to make the applicant's position redundant, without consulting her. It is for the lack of consultation that the respondent can, and should be criticised. Mr Edward's evidence properly conceded as much. These other matters do not point to some elaborate ruse or conspiracy to conceal the real reason for the applicant's dismissal. They flow from the respondent's failure to comply with the Award's notification and consultation provisions. I shall come to these matters shortly.

[118] Importantly, there is no dispute that during the twelve months in which the applicant was not working in the business, all of her duties were redistributed and performed by other of the respondent's employees, including Mr Davis, Mr Morris, Mr Bryant, Mr He, Mr Edward, Ms Amar and Ms Wang. Viewed in this way, the applicant's absence was probably, and unfortunately, the catalyst for the respondent to 'make the call that the work she was performing could easily be absorbed by other employees and ultimately performed at a wider and higher level by a new recruit, Ms Rattanathasaniya.

[119] The termination of the applicant's employment, in the context of a business restructure, while very distressing for the applicant (particularly given her personal traumas) is a classic and unremarkable example of a 'genuine redundancy'. To my mind, it is not unlike the circumstances which were explained in Ulan v Howarth and later adopted by another Full Bench in Mackay Taxi Holdings Ltd v Wilson [2014] FWCFB 1043 ('Mackay Taxi Holdings'). The Full Bench, in Mackay Taxi Holdings in the context of an employer increasing the skills level required of its bookkeeping/accounting responsibilities, said.

'[34] The job, however, was not the same job. The requirement for a formal qualification was not added to a job as if a mere administrative initiative. The qualifications required were reflective of new and higher level duties which were to be carried out by an appropriately qualified bookkeeper. Given the manner in which the matter proceeded, the Commissioner was not in a position to set aside the Appellant's evidence in this regard.

[35] The job was therefore a new job, despite the fact that it incorporated many of the former tasks performed by the Respondent.

[36] Contrary to the Commissioner's findings, we think the changes to the position referred to above are operational changes. That is, they are changes that give effect to a change in the operational focus of a position to the benefit or advantage of the employer (be it to meet governance requirements or to improve efficiency).

[37] Whether the original duties or tasks continue to be required to be performed is not necessarily relevant: it is the operationally-driven changes to the position that need to be made out.

[38] We think this point was made sufficiently clear by the Full Bench in Ulan Coal Mines Limited v Howarth and Others [emphasis added, endnote omitted].'

[120] Later in Mackay Taxi Holdings, the Full Bench said as follows:

'[42] On the unexamined and uncontested evidence before the Commissioner, the job as it had been had become a more complex job at the higher end, requiring the exercise of duties by a person who was a qualified bookkeeper, which the Respondent was not. The fact that a body of the former duties associated with the Respondent's position continued to be required to be performed in whole or in part is beside the point.

[43] The operational objective on the part of the Appellant to rely on the qualified services of a bookkeeper to improve the "capacity of the administration to function at a higher level" brought about a real and genuine change to the position as it had been performed by the Respondent. This is the kind of change that ordinarily would give rise to a redundancy (where the incumbent does not possess the qualifications to give effect to the operational objective).'

[121] Finally, if I have any criticism of the respondent's case, it was its failure to call Mr Tang to give evidence or provide a witness statement. However, I accept that because he was unable to be cross examined because he was overseas, any witness statement would likely be of limited evidentiary value.

Notification, consultation and options for redeployment

[122] Obviously, there are two further aspects to the Act's definition of 'genuine redundancy'. The first concerns the notification and consultation provisions under the applicable Award and, secondly, whether it would have been reasonable to redeploy the applicant within the employer's enterprise or an associated entity. I do not understand there to be any associated entity of the respondent to which the applicant could have been redeployed. The focus then, is whether there were any available alternative positions within China Southern Airlines (including possible offices in other cities) to which the applicant could have been redeployed.

[123] In Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578, the Full Bench of FWA held that employees and/or their representatives should be involved in discussions as to the problems associated with redundancy as soon as a firm decision had been taken that redundancies might be necessary. The Full Bench went on to say at para [27]:

'[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.

[29] It is appropriate to mention some submissions advanced by counsel for Ulan concerning the interpretation of the s.389(2). It was submitted that an employer will not usually have the power or right to transfer an employee to employment by another employer, except in the unusual case where it is provided for in the terms of employment. Accordingly, the use of the term "redeployment" is directed at a broader concept, one which would include employment with the employer or an associated entity at some time after termination for redundancy. It was said that it is appropriate to regard an employee as having been redeployed if the employee is subsequently employed in a different or alternative position by their former employer or by an entity associated with their former employer. While this submission has a number of other implications, it is sufficient to say that it is not consistent with the clear words of the section and would lead to a great deal of uncertainty in its application. As we have already indicated, if an employee is terminated for redundancy but subsequently employed within an entity related to the employer, that might be an indication that the employee could have been reemployed at the time of the termination. But this will not always be the case. Subsequent employment within an associated entity may occur because circumstances have materially altered since the termination. For example, vacancies may have arisen.

[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.'

[124] In Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714, a Full Bench of the 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.'

[125] The meaning of the word 'consult' was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165. At paras [30]-[33], the Full Bench said:

'[30] The word 'consult' means more than the mere exchange of information. As Young J said in Dixon v Roy :

"The word 'consult' means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response." [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

"... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to "consultation" has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to "consult" may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, "this is what is going to be done" and saying to that person "I'm thinking of doing this; what have you got to say about that ?". Only in the latter case is there "consultation. ..."

[32] We respectfully adopt his Honour's observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. 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.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

● to provide an opportunity for affected employees to give their views about the impact of the change; and

to consider any views about the impact of the change that are given by the employees [footnotes omitted].'

[126] Given my exchanges with Ms Thew during her submissions on 23 July 2015, it should come as no surprise to her, or the respondent, that I find, without any hesitation, that the respondent had failed to properly consult with the applicant as to the rationale for the restructure of the business and seek her views as to its likely impact on her future employment. These Award obligations are found at cl 9 of the Award (See para [13]) and are common provisions in all Modern Awards.

[127] There are two components to the notification and consultation requirements under cl 9, which regrettably were not appropriately understood and applied by the respondent. Firstly, there is an obligation to notify employees when a 'definite decision' has been made to 'introduce major changes… likely to have a significant effect on employees…'

[128] Secondly, there is an obligation to consult with employees (and their representatives) as to the impact of the changes on their future employment and to consider measures to avert or mitigate any adverse effects of such changes on employees. In both cases, the respondent simply failed miserably.

[129] However, that said, Mr Edward did not seek to 'gild the lily' or obfuscate about the failures in the notification and consultation in the process, as the following exchanges in his oral evidence will demonstrate:

So you told the employees of the respondent's regional marketing operations, you started telling them in about May 2014, about the restructure. Is that right?

No. What we had discussions with senior management on the possibilities of restructuring certain departments. One particular department that came to mind was the Regional Marketing Department and that's when we realised that we needed to take this to a completely different level as far as a strategic and planning approach because of the new budgets that had been coming through.

So which month, in 2014, roughly, did you tell employees of the Regional Marketing Operations about the restructure?

Okay, the restructuring was - it was a blanket approach to all departments that there was a restructuring going on and as and when these would be fully detailed would be appropriately known at the specific time. As far as - are you referring to marketing or are you referring to any specific department?

When did you tell the employees of the Regional Marketing group or department about the impending restructure? When did that conveyance or the communication of information - when did it roughly start?

To an average staff member? Is that what you're saying?

Yes. Well, you can start with management. When you started telling management?

Okay. For management - senior management - the restructuring discussions started in May.

And if you'd like a specific date, I think it was around the 23 May, and then as far as staff were concerned it was a blanket approach and it started to come out, from memory, around about the October period of 2014.

All right. So did you - when you said there was a blanket approach what did you mean by that?

Okay. What I meant by that statement was that everyone was aware that there was a restructuring.

All right. And were there any meetings that you recall conveying information to staff, generally, about the restructure?

Were there any seminars at which the restructure was discussed?

All right. So it was conveyed more in a general sense?

And can you explain how it was conveyed in a more general sense?

Well, look it was apparent that people were missing in certain roles - key roles.

Or how it was conveyed. The information that there was a restructure, how was that conveyed?

It wasn't officially conveyed by us to the employees until such period as October, as mentioned. The reason why we didn't want to set in panic with the employees or staff. You know? It's not our job to create anxiety within the company. It's our role to look at increasing efficiencies and how we can increase our market share.

[130] It was, at best, na�ve to assume that employees were aware of the restructure because it was common knowledge that key people were no longer around and everyone knew Mr Edward was brought in to effect and implement changes. The respondent's assumptions do not meet the notification test required by cl 9(a) of the Award. Similarly, to suggest that the notification requirements were satisfied because senior management (only) were aware of the restructure, falls well short of the spirit and intent of the Award's requirements. Mr Edward also said that official confirmation was not initially conveyed to staff so as to avoid panic and anxiety. Such an explanation is simply nonsense. Surely if employees were aware something was happening, their anxiety and concerns would have been heightened in an environment of rumour and uncertainty. It was incumbent on the respondent to be frank, open and transparent with the employees and not hide behind a silly argument that not telling them of the restructure was somehow to their emotional benefit.

[131] However, the most serious flaw in the process, which must render the applicant's dismissal procedurally unfair and inconsistent with s 389 of the Act, was the respondent's email of 25 July 2014, in which it was made pellucidly clear that the decision had been made to make the applicant's position redundant, without any consultation with her. The offending sentence ('This means that your position of Marketing and Communications Manager, Australia will be made redundant') could not be more straightforward or unequivocal. The use of the verb 'will' could leave no-one, particularly the applicant, in any doubt, that the decision had already been made.

[132] The fact that the email went on to invite her to comment and provide input is entirely irrelevant and internally inconsistent with the express wording of the offending sentence. It is little wonder that the applicant's response on 30 July 2014 was:

From my understanding of the letter, it clearly states the decision has already been made about my role being redundant.

Do forward the confirmation with the necessary, final terms, etc.'

[133] The very next day, Mr Tang confirmed the respondent's decision to make her redundant and pointedly makes no comment or rebuttal of her belief that the words in the 25 July 2014 email confirmed the decision had already been made. It seems to me that if this was not the case, the respondent could have easily said so. The fact that it did not, fortifies my view that the applicant's understanding of the effect of the 25 July 2014 email was absolutely correct.

[134] Further to the lack of consultation with the applicant, I do not consider that the respondent can hide behind a defence that the applicant was overseas and could not be contacted. There obviously could not be a 'face to face' meeting. However, the respondent made plain that there was email communication between Mr Tang and the applicant, apparently without difficulty, subject to some relatively minor delays. The applicant offered to meet on her return (17 August 2014) or have a meeting by phone. Neither option was taken up by the respondent. In my opinion, both options were reasonable and achievable. After all, the new employee did not commence until October 2014 and presumably meetings could have been organised when the applicant returned from overseas between August and October.

[135] Moreover, I consider it disingenuous for the respondent to submit that it would have been difficult for the parties to organise a phone meeting. It would appear that the respondent simply was not interested. This fortifies my view that its lack of a will to 'meet' the applicant was really indicative of its view that the decision had already been made. It was not even intending to pay 'lip service' to consultation.

[136] It was Mr Edward's evidence that he had considered two options for redeployment of the applicant, but neither were considered suitable or available. One was the lesser position of Marketing Manager and the other was Graphic Designer.

[137] The suitability or otherwise of these positions is not the point. The fact was she was not invited to put her views as to their suitability at all. While I accept that the applicant's skills were unlikely to be suitable for the graphic design position, Mr Edward merely assumed that because the Marketing Manager's role was a less senior and lower paid position, it was not suitable (presumably on the basis that she would not accept it). This seems a curious assumption when the applicant had been actually seeking a less demanding role, while recuperating from her illness.

[138] But in any event, that is not the test for considering alternative options for redeployment. As Mr Edward did not even discuss any options with the applicant, he was in no position to assume anything about the applicant's interests or otherwise. It was not open to Mr Edward to presume she would not accept a lower position, particularly given that her evidence is that she would have.

[139] In this respect, I refer to what Ryan C said in Margolina v Jenny Craig Weight Loss Centres Pty. Ltd. [2011] FWA 5215 at para [36]:

'[36] What each of the three cases and the present matter show is that employers should not arrogate to themselves the role of concluding how the redundant employee will respond to an offer of redeployment to a lower paid position. In each of the three cases relied on the conclusion that the redeployment offer was not reasonable in all the circumstances was not arrived at simply because the employer presumed that to be the case but was only arrived at by the Tribunal considering all of the evidence and material before it and then making a decision.'

[140] I note that a Full Bench in an appeal against the Commissioner's decision in Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137 said at paras [27]-[29]:

'[27] In Ulan Coal Mines Limited v. Honeysett and others a Full Bench of the Tribunal considered s.389(2) and said:

"[28] 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."

[28] In this case it is clear that there was a centre leader position available. The respondent had the necessary skills, qualifications and experience and she had no objection based on location. While the income was much lower and the responsibility much less than for a regional manager, she gave evidence that she would have accepted a centre leader role for reasons which we have referred to above. There is no reason to disbelieve the respondent's evidence, even though she has now taken a leadership role, which appears to be similar to her former role with the appellant.

[29] We agree with the Commissioner's conclusion that it would have been reasonable in all the circumstances for the respondent to have been redeployed. It follows that the dismissal was not a case of genuine redundancy.'

[141] For the aforementioned reasons, I find that the applicant's dismissal on 1 August 2014 was not a case of 'genuine redundancy', within the meaning of s 389(1)(b) of the Act, in that the respondent had not properly notified or consulted the applicant in accordance with its obligations under cl 9 of the Award. Axiomatically, as the applicant was a person protected from unfair dismissal (s 385), the Commission is not precluded from determining whether the dismissal of the applicant was 'harsh, unreasonable or unjust', within the meaning of s 387 of the Act.

[142] This application will be relisted for further mention and directions at 9:30am, Friday 2 October 2015 in respect to further proceedings to determine whether the applicant's dismissal was 'harsh, unreasonable or unjust' within the meaning of s 387 of the Act and, if so, what remedy, if any, should be ordered by the Commission. Given my reasons in this decision, I recommend the parties engage in further negotiations in an endeavour to reach a settlement of the applicant's claims in this matter.

Mr G Davies, Solicitor and Ms C McNair, Solicitor for the applicant.

Ms P Thew of Counsel instructed by Ms A Teggins, Solicitor for the respondent.

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