Rebecca Francombe v M.Clinicia Pty Ltd [2020] FWC 666 (21 February 2020)

[2020] FWC 666

Fair Work Act 2009

s.394 - Unfair dismissal

[1] Ms Francombe (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal.

[2] M.Clinicia Pty Ltd (the Respondent) operates medical centres in the Perth area of Western Australia. It was uncontroversial that the Respondent had less than thirteen employees and that it employed the Applicant, a Practice Nurse Manager, from on or around 19 January 2018, until she was dismissed on 18 October 2019.

[3] The Respondent objected to the application on the basis that the dismissal was a case of genuine redundancy or redundancy. However, the Applicant submitted that the redundancy of her position was in effect a ruse, because her position was offered to an existing staff member following her dismissal. It followed, said the Applicant, that her job was still required and therefore the dismissal was not a case of genuine redundancy.

[4] Having considered the evidence and submissions, on balance, I am satisfied that the termination of the Applicant's employment was a genuine redundancy within the meaning of s.389 of the Act. It follows that the Respondent's objection has been made out, and the application is dismissed. My detailed reasons follow.

[5] According to the Respondent, in early August 2019, Mr Pan, the Chief Financial Officer, met with the Applicant to explain that the business was in financial difficulty.[1] Evidence given by Mr Pan, at hearing, was to the effect that there had been a series of staff meetings where he had communicated to one of the Directors of the business, the Applicant; and Ms Towie - the former Operations Manager of the business; that the business was losing $15,000 a month. Mr Pan explained that in those meetings there was discussion about increasing the revenue of the business and how to drive efficiencies.

[6] Ms Towie gave evidence that while there had been a series of staff meetings inclusive of discussion about increasing the income stream and sale of consumables, in addition to time and motion studies and staffing, there had been no indication that the Applicant's position was in jeopardy in those meetings that the Applicant attended.

[7] Mr Shawn Waugh, Chief Executive Officer of the Respondent, gave evidence that the business had in fact requested a time and motion study and not long after, the Applicant provided her resignation letter. Included in the Applicant's bundle of documents (Exhibit A3) were the minutes of a team meeting held on 21 August 2019. The Applicant, Ms Towie, Mr Pan, Mr Waugh and Dr Summers were said to be in attendance. One of the agenda items was titled 'Management Roles'. Underneath the heading 'Discussion' it stated:

Mandy & Bec's Time & Motion study requested by Mr Shawn Waugh & Dr Andrew Summers was presented to all parties present. Both employees discussed feelings surrounding the request for the study to be completed and advised that if the company directors were not happy with the work produced, then resignation letters were attached.[2]

[8] By letter of 21 August 2019, the Applicant tendered her resignation observing in the letter that over the last six weeks there had been differences of opinion regarding processes, work assignments and goals for the Respondent.[3] Evidence was given that the Applicant was asked to reconsider her resignation, and was requested to remain employed, which she did.

[9] The Applicant gave evidence of a meeting, held on 17 September 2019 at Mell Road Medical Centre, in which discussions were had with Mr Knight (external to the business) about the proposed expansion of the Respondent's occupational health provision. Mr Pan attended the meeting and confirmed that there was an initial meeting, where Ms Towie and the Applicant were present, and the daily operations of the business were discussed. Following that meeting, Mr Knight joined them and discussions took place about improving the Respondent's occupational health provision with a view to expanding the revenue of the business.

[10] The Applicant's evidence was that following the meeting she was asked to recruit three nurses. However, it is apparent from the evidence of Mr Pan that such recruitment never occurred. It was Mr Pan's evidence that the meeting with Mr Knight was held with a view to seeing whether the expansion of the occupational health division of the business might secure an increase in revenue.

[11] The Respondent tendered into evidence a letter from Trinix Lawyers of 8 August 2019. The letter addressed to the Respondent, was in effect a letter of demand for an unpaid debt of $27,670.00 owed to Trinix Lawyers' client. The letter set out a payment arrangement for the debt, which if not accepted by a specified date would result in the commencement of legal action.[4]

[12] Further to the letter from Trinix Lawyers, the Respondent produced a letter from Scalise Lawyers outlining that the Respondent had defaulted on its obligations under the lease for premises in Wanneroo.[5] The outstanding debt amounted to $43,109.34.[6]

[13] To support its contention that the Respondent had been in financial distress for a long time, it tendered a Debt Sheet that was purported to have been prepared by Ms Towie. In her evidence Ms Towie took no issue with the Debt Sheet, which at the top of the page indicated that it was current as of 9 July 2019. The debt was purported to be $269,984.61.

Had 1st Dr from MPM email me wanting to know where her money was

Meanwhile, can u please let me know what is your action plan this week to reduce the operation cost and improve business revenue? @MandyTowie i will start micro management this week, as the business is in serious financial distress

Sorry guys, know you dont want to hear this but Drs are ringing wanting their pays[7]

[15] A further text message appeared to be discussing the payment of wages. It stated '[I]t is clearly the case that we will not have this sum by Friday when we need to ensure that payments are made to staff... My only suggestion is that we ask If [sic] Mandy and Bec can hang onto Tuesday, I know this is really not acceptable either but I don't know what else to suggest, and that Vishal and I find the difference required so that all the staff receive their pay by Friday end of business...'.[8]

[16] The Applicant gave evidence that on 11 October 2019, Mr Pan sent a message to managerial staff stating 'emergency Managers meeting scheduled for 15th October 2019' and that the Operations Manager and Nurse Manager would be spoken to separately.[9] The meeting took place on 15 October 2019, and the Applicant confirmed that during the meeting with Mr Waugh and Mr Pan she was informed that her position was being made redundant, because the Respondent could no longer afford to employ her.[10] The Applicant said she was informed that she could be offered another position, however it was at a significantly lower wage.[11] The Applicant stated that she requested that her redundancy be put in writing and sent to her, with a copy of the contract for the new position.[12]

[17] The Applicant gave evidence that she received an email from Mr Pan on 16 October 2018, which contained the redundancy letter and new employment contract. The letter of redundancy set out that the Applicant's dismissal would take effect on 18 October 2019, and therefore, Mr Pan would appreciate a definitive answer regarding the new position before this time, so that plans could be made for the following week.[13]

[18] According to the Applicant, Mr Waugh contacted her on 16 October 2019 requesting information regarding the five full-time nurses, including their rosters, and the private mobile phone number for Ms Castle.

[19] Ms Castle, who was not a witness in the proceedings, was purported to have called the Applicant on 17 October 2019 and informed her that she had been offered the Senior Nurse/Nurse Manager's position. The Applicant stated that Ms Castle sought her advice in regard to this offer. The Applicant stated that on 21 October 2019, there was an exchange of text messages between her and Ms Castle:

TBH have given it no thought over weekend so busy I have a few questions before I make a definant [sic] answer

That's fair. Don't doubt that you don't have the skills or the ability [sic]. You need to look after you. You'll be a brilliant team leader/nurse manager.[15]

[20] The Applicant stated that on 16 January 2020, a Ms Mason (who is assumed to have worked, or was working at the Respondent business) confirmed via text that Ms Castle had taken on extra responsibilities, however no new 'official title'. After several preceding text messages, the Applicant asked Ms Mason:

... Where are you other than Mclinica? Did kaela take the nurse managers position? She'd do so well at that.

Yeah i bet! I work for Healius. They have a few clinics all over the place but my one is called Rudloc Road Medical in Morley. Cosmetics would be great, so much fun and imagine all the botox.. Kaela has definitely taken a lot more on but not sure if the title has come with it. She is amazing at w[sic]

She sure is. Sounds like you've really landed on your feet with the new role ...[16]

[21] While the Applicant provided no basis for her understanding, she contended that Ms Castle was now attending the occupational health meetings in a Senior Nurse capacity, and any relevant changes to nursing procedures were being relayed and implemented to all nursing staff by Ms Castle.[17]

[22] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of Part 3-2 of the Act granting a remedy for unfair dismissal.

[23] An order for reinstatement or compensation may only be issued where the Commission is satisfied that the applicant was protected from unfair dismissal at the time of the dismissal.

[24] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

1. What is an unfair dismissal

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.

[25] Section 396 of the Act provides that, before considering the merits of an application for unfair dismissal remedy, the Commission must determine some other initial matters. Section 396 is as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relation to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business

(d) whether the dismissal was a case of genuine redundancy.

[26] The effect of s.396 of the Act is that if a dismissal was a case of genuine redundancy, the Commission does not need to consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.

[27] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). The Code is only relevant if the employer is a small business.[18] I am satisfied the Respondent is. However, the Code does not apply to dismissals in circumstances of redundancy.[19]

[28] It is not in dispute that the Applicant made her application for an unfair dismissal remedy within the period required in s.394(2) of the Act, and that the Applicant is a person protected from unfair dismissal having satisfied the minimum employment period and earning less than the high income threshold. It is, in addition, observed that the Applicant was covered by the Nurses Award 2010[20] (the Award).

[29] To recall, the crux of the matter is whether there was a genuine redundancy of the Applicant's position. The Applicant submitted that there had not been any consultation and the redundancy was a ruse, as her job was still required.

[30] The Respondent bears the evidential burden concerning its objection that the dismissal was by way of genuine redundancy. The term 'genuine redundancy' is defined in s.389 of the Act in the following terms:

(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.

No longer requires the person's job to be performed

[31] To be satisfied the dismissal was a case of genuine redundancy, the Commission must be satisfied that the role of Practice Nurse Manager was no longer required to be performed by anyone because of changes in the operational requirements of the Respondent.[21] I have concluded that was the case for the reasons that follow.

[32] The term 'operational requirements' is not defined in the Act. However, it is considered to be a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business.[22] Some examples of changes in operational requirements include a downturn in trade that reduces the number of employees required and the employer restructuring the business to improve efficiency, including the redistribution of tasks done by a particular person between several other employees, thus resulting in the person's job no longer existing.[23]

[33] It follows that an employee may still be genuinely made redundant when there are aspects of the employee duties still being performed by other employees.[24] In Kekeris v A. Hartrodt Australia Pty Ltd T/A A. Hartrodt,[25] Senior Deputy President Hamberger expressed:

When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of the two positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the Explanatory Memorandum makes clear that it can still be a 'genuine redundancy' where the duties of the previous job persist but are redistributed to other positions. The test is whether the job performed by the applicant still exists. [26]

[34] It should be noted it is the 'job' that is no longer required to be performed, rather than the 'duties',[27] and the onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.[28]

[35] While, the Applicant had submitted her resignation in August 2019, a time where the evidence indicates the Respondent was in debt in the amount of approximately $269,000 and had received two letters of demand for unpaid debts, the Respondent clearly decided it would retain the Applicant at that point. It appears from the evidence of Mr Pan that the Respondent was wanting to retain its staff rather than effect redundancies.

[36] However, by early to mid-October, the text messages between members of the management group point to an escalation of financial distress, with Mr Pan informing the group that he would start 'micro management this week as the business is in serious financial distress'. The evidence led by the Respondent concerning the letters of demand, text messages evincing difficulty paying doctors and staff (with some wage payments being deferred), a letter of electricity disconnection and the Debt Sheet was uncontested. Further, it appears that not only the position of Practice Nurse Manager was made redundant, but also that of Operations Manager.

[37] In circumstances where a business relies upon the assertion that it was under 'financial distress', hence necessitating a redundancy or redundancies of positions, one would anticipate the business in question would present direct evidence of its profit and loss statements. This is particularly the case when both the Chief Financial Officer and Chief Executive Officer of that business have decided to give evidence. After all, the Respondent bears the evidential onus of making out its case that it no longer required the position to be performed by anyone because of changes in its operational requirements.

[38] However, I am appreciative that the business is purported to have less than 15 employees, and that there is evidence to show there were legitimate cash flow issues, given the letters of demand, disconnection notice from an electricity provider, consternation regarding payment of staff, and discussions regarding how payments were to be made to the doctors - who understandably were enquiring as to where their pay was. Further, it is not the case that the Applicant challenged the evidence concerning the financial position of the business in this respect. While the Applicant directed attention to the meeting held on 17 September 2019 at the Mell Road Medical Centre, where discussions took place about a proposed expansion of the Respondent's occupational health provision, there was no evidence to show that such expansion occurred or that further nurses were recruited.

[41] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states the following in respect of consultation in s.389 of the Act:

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

[42] If an employer is obliged to consult and fails to do so there cannot be a genuine redundancy.[29] In the decision of Ventyx v Mr Paul Murray[30] (Ventyx) the Full Bench explained that an award provision, similar to that included in the Award under consideration, did not require an employer to provide an opportunity for the employee to change the definite decision the employer has made. The award obligation, instead, required the employer to discuss certain prescribed matters (the introduction of the changes, the likely effects of the changes, and to consider measures to mitigate the adverse effects of such changes).[31]

[43] Drawing upon the decision of Barnes J of the Federal Circuit Court in Ingersole v Castle Hill Country Club Limited[32] (Castle Hill) the Full Bench in Ventyx adopted the following passages from Castle Hill:

145. It was also submitted for the Applicant that in substance cl.8 was an "ancient" clause that should have been construed as including a duty to consult to avert future changes (not merely the prejudicial effects of a decision that had already been made). Insofar as such contention was initially put on the basis that Judge Raphael was clearly wrong in his interpretation of the part of the clause considered in Qantas that was similar to cl.8.2(a) of the Award, this argument was not maintained. In any event, consistent with the principles of construction considered in Kucks, on the clear wording of cl.8 of the Award it is apparent that no consultation is required until a definite decision has been made and then the consultation envisaged is as set out in cl.8.2(a), in relation to the introduction and likely effects of the changes decided upon and measures "to avert or mitigate the adverse effects of such changes on employees", not to avert (or avoid) the changes themselves.

149. Insofar as the Applicant maintains the contention that the construction of cl.8 of the Award is in doubt, having regard to the particular clause in question and the general principles of construction considered in Qantas and cases referred to therein, I am satisfied that the wording of cl.8 of the Award makes it clear that the obligation to consult does not arise unless and until a definite decision has been made by the employer. In other words, the obligation under cl.8 is not an obligation to consult on mere proposals or possible major changes which, if adopted, would have the effect of introducing major changes likely to have significant effects on employees (such as termination of employment).

151. Even though in one sense a definite decision to introduce a change consisting of a termination of employment would be a "fait accompli" before the mandated discussions were to commence (Municipal Officers Association at [3 9]), the rationale and scope for a requirement of consultation in such a case is clear on the language of cl.8 of the Award, in particular cl.8.2(a). It extends to the introduction of the changes about which there has been a definite decision, the effects such changes are likely to have on employees and measures to avert or mitigate the adverse effects on employees of such changes. I am satisfied that the obligation on the Club under the Award was to notify, consult and discuss in relation to the results or effects of changes that the Club had made a definite decision to introduce. [Our emphasis]

[44] Consultation is not perfunctory advice on what is about to happen, consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.[33] The Full Bench in Ventyx posited that on the face of the plain language of the award clause in question, the clause was premised upon discussions occurring prior to or in advance of the implementation of the redundancies, as such, but after the definite decision has been made. The Full Bench illustrated its point referring to clause 9.1(a)(i), which provided:

Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

[45] The consultation requirements are set out in the Award at cl.8:

1. Consultation about major workplace change

• 8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
  • (a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
  • (b) discuss with affected employees and their representatives (if any):
    • (i) the introduction of the changes; and
    • (ii) their likely effect on employees; and
    • (iii) measures to avoid or reduce the adverse effects of the changes on employees; and
  • (c) commence discussions as soon as practicable after a definite decision has been made.
• 8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
  • (a) their nature; and
  • (b) their expected effect on employees; and
  • (c) any other matters likely to affect employees.
• 8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.
• 8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).
• In clause

significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.

[46] In short, while evidence was given of several staff meetings and of messages sent via group text messages, I am unpersuaded that these steps evinced consultation with the Applicant.

[47] However, the Respondent submitted that on 14 October 2019, Mr Pan identified that the Applicant's position was at risk of becoming redundant as it appeared surplus to requirements. While the Respondent initially identified it had three nurses within its business, it appeared that there were five. Nevertheless, I do not consider that anything turns on this. The salient point is that by 14 October 2019, the Chief Financial Officer of the Respondent considered that it was not economically viable to retain the Practice Nurse Manager position.

[48] There was some dispute about what was discussed in the meeting on 15 October 2019. However, what is apparent is that the meeting took place as soon as practicable after a definite decision had been made.

[49] Mr Pan's evidence was that the Applicant was provided with written financial information on the state of the business, which the Applicant disputes. It was difficult to discern whose version of events accurately portrayed what had occurred with respect of the provision of relevant written information. However, as requested, the Applicant was provided with a letter dated 15 October 2019, outlining the redundancy and the reason why, and a copy of the contract for the new position.[34] The letter set out the redundancy of the position and that the Applicant would be dismissed, effective 18 October 2019. I am satisfied that such action accords with the Award's obligation under cl.8.2, but if I am wrong in this regard I have traversed detailed reasons at paragraphs 58 to 61 why my decision would remain unchanged regarding the dismissal of the application.

[50] It was agreed that there was discussion regarding the reason for the redundancy and the proposition that the Applicant consider a regular nursing role. This part of the meeting appears uncontroversial. The Applicant confirmed she was informed that she could be offered another position, however it was at a significantly lower wage.[35] Mr Pan had requested that the Applicant provide a definitive answer regarding the new position before this time, to enable plans to be made for the following week - hence the provision of an employment contract.

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

[53] The consideration of the reasonableness of redeployment involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee, their conduct and approach to the redeployment.

[54] The Explanatory Memorandum to the Fair Work Bill at [1552] provides:

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

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

[55] The decision in Ulan Coal Mines Limited v Honeysett and others[37] dealt extensively with the redeployment obligations set out in s.389(2) of the Act. I have considered the decision of the Full Bench in that matter and in Technical and Further Education Commission T/A TAFE NSW v Pykett.[38]

[56] The Applicant was offered a nursing position, which attracted less pay and responsibilities than that of Practice Nurse Manager. However, having heard from both witnesses for the Applicant and Respondent, I am satisfied that for the purpose s.389(2)(a) it was a suitable job or position to which the Applicant could be redeployed, and that redeployment was reasonable in the circumstances.

[57] It therefore follows, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise to which it would have been reasonable in all the circumstances to redeploy the Applicant, and the Respondent attempted to do just that. While the position was not equivalent to that previously held by the Applicant, this does not defeat an argument of compliance with s.389(2)(a).

[58] If I am wrong with respect to the case being one of genuine redundancy because of a failure to comply with the consultation provision under the Award, I would, notwithstanding, dismiss the application.

[59] There are undoubtedly shortcomings regarding the evidence adduced by both Applicant and Respondent. However, there must be a level of understanding that the parties were both unfamiliar with arbitral hearings and were unrepresented. None were versed on evidential burden or the necessity to challenge the evidence of the other - should they have wished to rebut it. And, while both were directed to various resources to assist them in the preparation of such material, there is a tendency perhaps to focus attention on the prosaic concerns of day to day life, rather than the cases advanced.

[60] Yet, the evidence established that the reasons for the Applicant's dismissal by the Respondent was that the Respondent no longer required her job to be performed by anyone, because of changes in the operational requirements of its enterprise. While it was reasonable to redeploy the Applicant, the Applicant subsequently declined that approach. It would therefore be the case that but for the failure of the Respondent to comply with its obligation under the Award that applied to the Applicant's employment to consult about the redundancy - and by this I specifically refer to the provision of written material outlining all relevant information about the changes, the Applicant's dismissal would have been a case of genuine redundancy within the meaning of the Act. The evidence also established that the reasons for her dismissal were 'sound, defensible and well-founded'[39] reasons.

[61] I have had regard to s.387 of the Act and have adopted the approach of the Full Bench in its decision of UES (Int'l) Pty Ltd v Leevan Harvey[40] (UES) when considering the s.387 criteria in circumstances akin to those now (including all factors under s.387 and their bearing on this case). However, unlike the circumstance of UES where a failure to comply with the relevant modern award's consultation provisions resulted in the conclusion that such failure was unreasonable, I do not consider the Respondent's failure, if there was such a failure to provide written materials detailing all relevant information, unreasonable. The Full Bench in highlighted that a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable. In the circumstances before me, it was evident that the Applicant was well-informed of the Respondent's financial situation. I am satisfied that in the meeting on 15 October 2019, the Respondent discussed its financial predicament, spoke of the need to make changes within its business due to operational requirements - that is it could no longer afford the position of Practice Nurse Manager, traversed the redundancy of the position and the opportunity to take up a nursing role. As such, the Applicant was not unfairly dismissed, as the dismissal was neither harsh, unjust, nor unreasonable.

[62] For the reasons traversed, I am satisfied that the termination of the Applicant's employment was a genuine redundancy within s.389 of the Act. It follows from the foregoing, that the Respondent's objection to the Applicant's unfair dismissal claim has been made out. As the Applicant's dismissal was a case of 'genuine redundancy' within the meaning of s.389 of the Act, her application for an unfair dismissal remedy must be dismissed. An order[42] to that effect will be published contemporaneously with this decision.

[1] Form F3 - Employer response to unfair dismissal application [10].

[9] Witness Statement of Rebecca Francombe (Francombe Statement) [9].