s.394 - Application for unfair dismissal remedy

• [1] On 9 October 2024, Ms Sophie Barakat (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant alleges that she was dismissed by Intelligent Monitoring Solutions Pty Ltd (the Respondent) on 24 September 2024.

• [2] On 28 October 2024, the Respondent filed its F3 - Employer response to the unfair dismissal application, raising a jurisdictional objection on the grounds that the Applicant's dismissal was a case of genuine redundancy.

• [3] On 16 September 2024, Mr Evan Comb, General Manager of the Respondent, sent the following email - with the subject line 'ATTN Sales Department - Review Notification' - to affected employees:

"Attention Employees within Field and Phone Sales SSG/ADT.

This letter serves as notification of the business's intention to review and evaluate all positions in this Department. This review may affect some of our current employees, which may impact some positions.

The review process is expected to commence on Tuesday, September 17th, 2024, and conclude on Tuesday, September 24th, 2024.

Those employees affected will receive initial correspondence flagging the review of their role.

The correspondence will be flagged as Significant business decision and impact on your position.

Tomorrow, Tuesday, 17th September, a group calendar invite will be sent out for you to attend a general discussion meeting, after which, throughout the week, 1:1's will be conducted with me, General Manager Signature Group and Tanya Waterworth, HR Manager Australia.

· Analyse job descriptions and role responsibilities.

· Hold internal audits to gain group feedback on roles.

· Prepare data to present to employees to outline roles under assessment.

· Explain why we are conducting this research - and the risk of potential redundancies.

• [4] On 17 September 2024, Ms Tanya Waterworth, Human Resources Manager for the Respondent, sent the following letter to the Applicant:

Significant business decision and impact on your position

The purpose of our discussion today was to advise you that Signature Security Group Pty Ltd has made a decision to make changes to our operations, and to consult with you on how these changes will affect you.

This letter confirms that your existing position as Sales and Retentions Operator has been identified as one that may be impacted.

Specifically, the business will be conducting a review of the operational requirements, of the business, commencing Tuesday 17th Sept 2024.

Therefore, we are commencing the consultation process this week, to discuss the changes required and associated impact on you, including redeployment opportunities.

We will be reviewing all applicable positions to determine suitability and operational requirements moving forward.

This letter is to confirm that this review will, commence Tuesday 17th Sept 2024 and will finalise next week, with a decision Tuesday 24th Sept 2024.

A further appointment will be made with you this week for a 1:1 discussion with the General Manager and HR, to discuss your application and decide on your suitability for the opportunity moving forward

1. Employee suitability, based on need, 'best fit' and appropriate skills deployment.

2. Determine if there are any suitable alternate roles that could be considered for you.

In the event that your position is identified as being redundant and we are unable to successfully redeploy you to a suitable alternate position, you will be entitled to a redundancy payment in addition to any other entitlements you may have.

We recognise that this can be a difficult time and these decisions are never easy. Please remember you can access the Employee Assistance Program throughout this process.

If you have any concerns, please discuss these with HR.

• [5] The Applicant was issued a Termination Letter on 24 September 2024, which provided:

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review that was discussed with you earlier this week.

Signature Security Group (the employer) has conducted a review of the operational requirements, of the business, this has come about, because of the recent acquisitions of a number of businesses into the IMG Group and the structural changes that are required.

As a result of the Dept restructure the position of Sales and Retentions Operator is no longer needed.

Regrettably this means your employment will terminate.

This decision is not a reflection on your performance.

Signature Security Group has made the following attempts to find you an alternative position within the enterprise and any associated entities:

• Reviewed 'employee suitability' of all employees, both internally and via the acquisition to determine the most suitable candidates for the restructure.
• Consider your application in the changes to determine impartially, the best fit for the business and the team.
• Reviewed other opportunities within the business relevant to your skills.

Based on your length of service, your notice period is 4 weeks. We are prepared to waive this notice period and pay this out, therefore your employment will end on Tuesday 24th September 2024

Due to your employment ending because of redundancy, you may be entitled to redundancy pay (please find attached calculation of your entitlements) in accordance with your Contract of Employment

You will be paid your accrued entitlements and any outstanding pay up to and including your last day of employment and superannuation.

If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

Redundancy and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you must wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.

• [6] A Jurisdictional Hearing was conducted in this matter by Video via Microsoft Teams on 24 February 2024.

• [7] This decision determines the jurisdictional objection only.

• [8] Section 394 of the FW Act provides that:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

• [9] Section 385 provides the meaning of 'unfairly dismissed' as follows:-

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

• [10] The meaning of 'genuine redundancy' is provided at s.389 of the FW Act:

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

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

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer."

• [11] The Respondent submitted that the Applicant's 'termination' was a case of genuine redundancy, and therefore, the Applicant has no jurisdiction to bring her application under s.394 of the FW Act.

• [12] The Respondent submitted that s.389 of the FW Act is satisfied for the following reasons.

• [13] The Respondent submitted that the Applicant's role was no longer required to be performed by any employee, because of changes in operational requirements of the Respondent's enterprise (due to a lack of volume of work and workplace productivity). The Respondent submitted that due to these factors, 10 employees' roles were projected to be redundant. The Respondent noted that, ultimately, 9 employees left following the consultation process.

• [14] The Respondent submitted that, in accordance with the relevant case law, 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";[1] which, the Respondent submitted, may be unique to that role, or many a generic role that is fulfilled by many employees. The Respondent submitted that in the present case, the relevant role was 'Customer Service Call Centre Operator', which is a generic role.

• [15] The Respondent submitted that, as evidenced in the witness statements of both Mr Comb and Ms Waterworth, there had been a reorganisation of the business, which resulted in 9 employees having no duties left to discharge. The Respondent submitted that it is uncontroversial that where there are no longer duties to be performed, the position becomes redundant.[2]

• [16] The Respondent noted that it did not purport that the work functions were no longer required, "in fact the situation facing the Applicant is simply the volume of work, to be distributed to the various employees is not sufficient to sustain the employment of their role, or 8 others due to workplace change, however other employees still continue to fulfil such roles".[3]

• [17] The Respondent submitted that the test before the Commission ought to be characterized as if the employee's 'job' is no longer required to be performed, rather than the employee's 'duties'.

• [18] The Respondent submitted that due to the restructure of the business to improve efficiency and redistribute particular work functions, the Applicant's job no longer exists.

• [19] The Respondent cited and relied on the following authorities:

"(a) Kekeris v A. Hartrodt Australia Pty Ltd, whereby the reduction of 4 supervisors to 3, by efficiencies and redistribution of work functions can still be a 'genuine redundancy';[4] and

(b) Markac v CSR Limited where the employer required fewer process positions due to the projected future needs. The employer ranked its employees based on an assessment. The employee scored poorly in a number of areas, and was consequently made redundant."[5]

• [20] The Respondent submitted that the above position is evidenced in the witness statements of Mr Comb and Ms Waterworth.

• [21] As to the requirement for consultation, the Respondent submitted that the obligations of the Security Services Industry Award 2020 were fulfilled in consultation with the Applicant and others, in effecting the workplace change.

• [22] The Respondent submitted that, on the evidence before the Commission, it took the following steps in effecting the workplace change:

"(a) Upon making the determination of the workplace change, immediately after the Respondents decision to make change, the employer gave notice to the affected and potentially affected employees of the proposed change with a view that the final outcome of the determined need to change was still flexible.

(b) The employer sought to meet directly with the Applicant, and:

• The alternate options considered to minimize the impact

(c) The Respondent also gave in writing the following information:

"It would appear to the Respondent, that the case for the genuine redundancy is not questioned by evidentiary fact, however it would appear the Applicant seeks to take exception as to why she was made redundant."

However, the Respondent submitted that this is an irrelevant consideration, as the process of selecting employees for redundancy is not relevant to question of whether the dismissal was a genuine redundancy.

• [24] The Respondent submitted that the consultation process allowed the affected employees to genuinely raise issues and matters which were considered and had the potential to influence the determination as to the total structural outcomes and operating effectiveness moving forward. The Respondent submitted that all employees had this opportunity of meaningful consultation prior to any decision to terminate being made.

• [25] The Respondent submitted that it is clear on the evidence before the Commission that email notifications were sent out, one-on-one consultations took place, and formal correspondence as to the contemplated changes and genuine consultation was exchanged.

• [26] The Respondent submitted that in accordance with the evidence before the Commission, the company is looking to consolidate its total workforce and, at the time the Applicant was made redundant, there were no suitable vacancies or roles available in the workgroup to which the Applicant could be redeployed.

• [27] For all of the above reasons, the Respondent submitted that the Applicant's termination was a case of genuine redundancy, and therefore, the Application should be dismissed by the Commission for want of jurisdiction.

• [28] The Applicant filed a Witness Statement in these proceedings, which is also taken to be her 'Outline of Submissions'. That Statement is summarised as follows.

• [29] The Applicant submitted that she was made redundant by the Respondent the day before her planned maternity leave was to commence.

• [30] The Applicant submitted that her redundancy followed an enquiry she made with Ms Waterworth on 29 August 2024. The Applicant submitted that she was 32 weeks pregnant when it came to her attention that, without any notice, the Respondent was not going to be paying her the 4 weeks maternity leave, as they had previously done with her other 2 children.

• [31] The Applicant submitted that the issues with the maternity leave should be noted and are as follows:

"• In 2021 and 2022 I was paid four weeks maternity leave and offered the remainder of my request maternity leave unpaid from the company, as well as part time employment when I returned.

• The offer of employment on a part time basis was due to my senior role in the team, high performance and ability to out perform other team members working full time.

• The employment contract states under section 17.1 that:

You are required to be familiar with and understand the requirements all ADT policies as advised to you from time to time.

Tanya Waterworth verbally relayed to me in her office on the 29th of August 2024, upon my enquiry into my maternity leave, that she purposely did not advise of the change in policy regarding maternity leave she did not want to give any negative news. The human resources manager knowingly withheld information regarding policy changing, as I also advised that I informed herself and management that I was pregnant at 15 weeks which Tanya Waterworth announced on the company platform, which I have attached.

• I was offered a redundancy the day before my maternity leave was to commence."

• [32] The Applicant also made submissions in relation to inconsistencies in the evidence provided by Ms Waterworth and Mr Comb in these proceedings. Notably, the Applicant submitted that in his statement, Mr Comb refers to a 'reduction in overall head count'. However, the Applicant submitted as follows:

"The December sales report clearly show that this was not the case when an additional member to the sales staff was added, after my redundancy and advertisement on SEEK.com.au for a position for my exact role attached."

• [33] Further, the Applicant submitted that Mr Comb has stated it was hard to place the Applicant into a position given her historic skill set. In response the Applicant submitted that:

"...since I was just about to commence twelve months of maternity leave, there was ample time for the company to find me an alternative role. Not to mention that after I was made redundant, an employee from a different division, in fact working for a different company (due to the fact that ADT AND IMG were changing their business structure and I was now being paid by a different company, without a separate contract for a new company) who did not have the sales skill set required, took on a role in the team I was made redundant from."

• [34] The Applicant submitted that Mr Comb has stated there was a requirement to reduce 10 employees in the Applicant's working area, and has referenced employees' productivity from August 2024 until December 2024. The Applicant submitted that she was going on maternity leave from September 2024 and was closing all accounts during the last month that she was working, as advised by management. Despite this, the Applicant submitted:

"I was still outperforming other full time sales employees while I was both working part time and not working for 80% of the time frame shown in this report."

• [35] Further, in relation to the consultation process, the Applicant submitted that she was contacted and advised she had to attend a consultation meeting on her rostered day off, while she was in the hospital having an ultrasound for her unborn baby and while caring for her two young children. The Applicant submitted that there were other affected employees who were on leave and not forced to attend this consultation meeting.

• [36] The Applicant referred to an employee named 'Wendy', and submitted that she was not part of the sales team when the Applicant was made redundant. The Applicant submitted that 'Wendy' was brought in after she was made redundant, demonstrating that her redundancy was not genuine. The Applicant further submitted that 'Wendy's' sales are significantly lower than the sales the Applicant made in the same role, in less hours. The Applicant noted that 'Wendy' works full-time, and she worked part-time but was able to outperform her in that role.

• [37] The Applicant referred to communications exchanged during the consultation process, and noted that the company advised that if it was unable to redeploy her then she would be made redundant. The Applicant submitted that the Respondent "did not take any course of action to redeploy me. There was no discussion about options for my redeployment or an alternative for my position within the company."

• [38] Further, the Applicant stated that Ms Waterworth, during the consultation meetings, referred to anyone who was made redundant being able to contact her son who runs a recruiting agency so that they could try find a new job. The Applicant submitted that this behaviour was insensitive and a clear conflict of interest.

• [39] The Applicant also referred to the notes filed by the Respondent in relation to her one-on-one consultation meeting. The Applicant submitted that various comments made in those notes, regarding her being disinterested in engaging in the process or not committed to her role, were lies.

• [40] The Applicant submitted that in her redundancy letter of 24 September 2024, she was advised that she was made redundant as result of the department restructure and that the position of Sales and Retentions Operator was no longer needed. However, the Applicant again stated that she was never advised of any efforts to seek to redeploy her within the business, there is now another employee in that team who was not there when she was made redundant, and there has been a current advertisement on SEEK.com for her sales role.

• [41] The submitted that two other people were made redundant that were "technically not in the sales team", and therefore, she was "technically" the only person in the sales team that was made redundant.

• [42] In light of her good performance record and her planned maternity leave, the Applicant believes that she was made redundant by the Respondent to avoid paying her maternity leave.

• [43] The Applicant also referred to a change to her contract dated 17 June 2024. The Applicant referred to a change in maternity leave entitlements, however, submitted that she was not aware of this change and had never actually signed this new contract. The Applicant stated that:

"Tanya Waterworth admitted that she chose not to disclose the change in maternity leave policy as she did not want to bring negative information to light and it is not her job to advise me if maternity leave is paid or not, it is my job to find out. My fault for assuming it is paid. She is the human resources manager."

• [44] For all of the above reasons, the Applicant submitted that her termination was not a case of genuine redundancy.

• [45] It is not in dispute that the Applicant was one of 9 employees who were made redundant in the vicinity of September 2024. I have taken this into account.

• [46] It is not in dispute that the Applicant was the only member of her "team" that was made redundant, despite her being one of the best performers, if not the best performer, in that "team". I have taken this into account.

• [47] I have taken into account that an existing employee from another department was moved into the Applicant's departmental reporting structure after she had been made redundant.

• [48] The Applicant was about to commence an approved 12-month period of maternity leave. As a result, the Applicant would not be at work after the restructure for the next 12 months. In her one-on-one interview, when asked by the Respondent about what she could bring to the company over the next 12 months, the Applicant answered honestly and appropriately by saying nothing on the basis that she would be on leave during the entirety of this period. I have taken this into account.

• [49] An important and relevant question is whether the Applicant's role actually disappeared. The Respondent led no evidence that the work performed by 'Wendy' required a different skill set to those competencies that were held by the Applicant. It would certainly appear from the "productivity" of efficiency report,[6] that 'Wendy' was the lowest performing sales consultant, by a significant margin, in the new team for December 2024. I have taken this into account.

• [50] I have taken into account that the Respondent undertook a consultation process with its employees. Whilst the Applicant raised some concerns over the length of her one-on-one consultation, I am satisfied that the Applicant had the opportunity to prolong the conversation if she had so desired.

• [51] The provisions of the FW Act are specific. Section 389(1)(a) is not ambiguous. The simple fact that the Respondent appears to have replaced the Applicant with another employee in the team, via an internal transfer, shows that the Applicant's job was not redundant.

• [52] As a result, I am satisfied and find that the Respondent has failed to defend the proposition that the Applicant's termination was a genuine redundancy.

• [53] The jurisdictional objection of the Respondent is dismissed.

• [55] Directions for the substantive application will be issued shortly.

[1] Jones v Department of Energy and Minerals [1995] IRCA 292.

[2] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].

[3] Respondent's outline of submissions at [8].

[4] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674.

[5] Markac v CSR Limited [2010] FWA 4548 (Hamilton DP, 2 July 2010).

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