Fair Work Act 2009

s.394 - Unfair dismissal

• [1] This decision concerns an application by Ms Susan Retter (the Applicant) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The WA Council on Addiction Inc T/A Cyrenian House (the Respondent) contends that the Applicant's dismissal was by way of a genuine redundancy and was not unfair.

• [2] From early 2020, the Applicant had been employed as a support worker working on a part-time basis at the Respondent's Nannup Therapeutic Community, or more specifically the Nannup Withdrawal Unit (NWU) that sits within that Therapeutic Community. Prior to holding this role with the Respondent, the Applicant worked on a part-time basis as an 'afternoon weekend night shift worker' on a fixed term contract until on or around February to March 2020, when the role was abolished.[1] In addition to her role as a support worker, the Applicant was, at the time of her dismissal, engaged on a casual basis as the night weekend supervisor under an Individual Flexible Workplace Agreement (IFA).[2]

• [3] On or around 16 January 2024, the Respondent advised the Applicant and the other part-time support worker in the NWU that a review would be carried out of the NWU (the Review).[3] There were only two support workers working within the NWU at that time. As noted, both occupied part-time positions and for the most part they were not rostered together, save an overlap of two hours on a Monday. The impetus of the Review appears to have been founded upon multiple purported issues. It was said to be the time taken to do handovers, because of having two part-time support workers.[4] It was further said that the need for the Review arose because the set-up of the support workers was negatively impacting the running of the NWU.[5] After the Review was completed, the findings of the Review, that is that the two part-time roles would be made redundant and one full-time senior support worker role would be established,[6] were communicated to the Applicant on 5 February 2024.[7]

• [4] By letter of 14 March 2024, the Applicant was informed that she would be eligible for a redundancy payment and that for her to continue working for the Respondent beyond 8 March 2024, she would need to apply for and be selected for the new full-time senior support worker position.[8] The Applicant applied for that position but was not the successful candidate. Her colleague, the other part-time support worker, was the preferred candidate. In addition to the full-time senior support worker position, prior to the Applicant's dismissal a position of full-time night weekend supervisor became available. The Applicant applied for this position too, but again was not the successful candidate.

• [5] The Applicant's dismissal took effect on 5 April 2024. At this time, the Respondent had not only terminated the Applicant's employment as a support worker but also her casual employment as the night weekend supervisor.

• [6] However, briefly stated, I am satisfied the evidence establishes that prior to 5 April 2024 the Applicant had engaged in serious misconduct. It follows that in all the circumstances, it was not reasonable to redeploy the Applicant and having met s 389(1) of the Act, the Applicant's dismissal was by way of a genuine redundancy in respect of her part-time support worker position. On this basis, the Respondent's jurisdictional objection is upheld. In respect of the Applicant's casual position as a night weekend supervisor, having considered each of the matters specified in s 387 of the Act, I find that the termination of this employment, was not harsh, unjust or unreasonable, and as such was not unfair. I have for the purposes of this decision and noting that there was no suggestion to the contrary, assumed that in respect of the Applicant's employment as a causal night weekend supervisor she was protected from unfair dismissal, the requisites in s 382 of the Act having been met.

• [7] It follows that the Applicant's unfair dismissal application is dismissed and an Order[9] will be issued to that effect.

• [8] The Applicant gave evidence in support of her case and on behalf of the Respondent the following witnesses gave evidence:

a) Ms Patricia Hitchins - General Manager Residential and Withdrawal Services;

b) Ms Therese Mahoney - Manager of the NWU and Respondent;

c) Ms Kellie Slattery - Clinical Co-ordinator Nannup Therapeutic Community;

d) Mr Simon James Cameron Hunter - Chief Operating Officer; and

e) Ms Michele Pilutkiewicz - Human Resources Generalist.

• [9] The following background is extracted from the witness statements of the witnesses in addition to evidence given at hearing.

• [10] The Applicant's employment as a part-time support worker commenced on 17 February 2024, pursuant to an employment contract signed by the Applicant on 22 March 2020.[10]

• [11] The Applicant's employment as a casual night weekend supervisor commenced on 2 August 2021, pursuant to an IFA signed by the Applicant.[11]

• [12] Both the employment contract and the IFA were accompanied by a Job Description Form (JDF) that described the position of support worker and night weekend supervisor. The service location for the night weekend supervisor was Nannup Therapeutic Community and the low medical withdrawal unit,[12] and for the support worker it was the Nannup Therapeutic Community. At the time of engagement both positions sat at an 'Award Classification' of Level 2 (the support worker role JDF specified Level 2.1).[13] Common between both JDFs was the duty to work in accordance with the Respondent's Code of Conduct (the Code).

• [13] Behaviour in the workplace was regulated by the Code, with all workers required to work in accordance with the Code.[14] Workers were required to adhere to organisational policies and procedures,[15] and to have a sound knowledge of, implement and comply with all the Respondent's policies and procedures, and all relevant standards and legislation.[16] All of the Respondent's employees were to act in the best interests of consumers and to ensure privacy and confidentiality of consumer personal details in accordance with the Australian Privacy Principles and the Respondent's Privacy and Confidentiality Policy (Privacy Policy).[17]

• [14] The Respondent's Privacy Policy set out the standards of confidentiality and privacy for all aspects of interactions with consumers of the service and staff.[18] The consumer's rights to confidentiality and privacy extended to the Respondent requesting and using the consumer's information such that was only necessary to assist in the provision of services to the consumer.[19]

• [15] It was uncontroversial that in addition to her employment contract and IFA, the Applicant was covered by Western Australian Council on Addictions Incorporated Enterprise Agreement 2012[20] (the Agreement), and it had applied to her employment. The Agreement provided for consultation where a definite decision had been made to introduce a major change of a prescribed type.

• [16] Both parties agreed that for the Respondent to be successful with its jurisdictional objection, it would bear the onus of showing compliance with clause 1.10 of the Agreement:

1. the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and
2. the change is likely to have a significant effect on employees of the enterprise.

1.10.2 The employer must notify the relevant employee of the decision to introduce the major change.

1.10.3 The relevant employees may appoint a representative for the purposes of the procedures in this term if:

1. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
2. the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative.

1.10.4 As soon as practicable after making its decision, the employer must:

1. discuss with the relevant employees:
   1. the introduction of the change; and
   2. the effect the change is likely to have on the employees; and
   3. measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
2. for the purposes of the discussion - provide, in writing, to the relevant employees:
   1. all relevant information about the change including the nature of the change proposed;
   2. information about the expected effects of the change on the employees; and
   3. any other matters likely to affect the employees.

1.10.5 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

1.10.6 The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

1.10.7 If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses 1.10.2-4 are taken not to apply.

1.10.8 In this term, a major change is likely to have a significant effect on employees if it results in:

a. the termination of the employment of employees; or

b. major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or

c. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

f. the need to relocate employees to another workplace; or

1.10.9 In this term, a relevant employee means the employees who may be affected by the major change.

• [17] In addition to clause 1.10, the Agreement addressed redundancy in clause 2.6 in the following terms:

2.6.1 Redundancy will be in accordance with the NES.

2.6.2 A position may become redundant if there are insufficient funds available to continue the position or if the position is no longer required. If as a result of a position becoming redundant an employee's contract is terminated, then the employee will be entitled to the standard period of notice plus redundancy pay.

2.6.3 Redundancy pay is calculated on an employee's period of continuous service in accordance with the NES.

2.6.4 Cyrenian House will endeavour to offer a redundant employee suitable alternative employment either within our outside the agency. An employee, who has been made redundant, may take up to eight (8) months time off without loss of pay during each week of the notice period to seek other employment.

2.6.5 Cyrenian House may make application to Fair Work Australia to have the redundancy pay reduced if it obtains suitable alternative employment for an employee.

2.6.6 This clause does not apply to a casual employee or to an employee whose contract of employment is terminated without notice for serious misconduct.

• [18] In late 2023, the Respondent had concerns about how the NWU was operating. In particular, the part-time support workers in the NWU were said to have experienced difficulties in completing their required tasks.[21] This led to discussion about undertaking a Review.[22]

• [19] Ms Mahoney gave evidence that before the Review, she had noticed that many of the tasks assigned to the part-time support workers were being completed by nurses.[23] These tasks included: (a) following up with residents; (b) checking medications; (c) checking that residents were given letters setting out what to pack; and (d) ensuring residents received courtesy calls.[24]

• [20] In late 2023, a committee was established (the Review Committee) and met on or around 11 December 2023.[25] The Review Committee included Mr Hunter, Ms Hitchins, Mr Stephen Scarrott (HR Officer), Ms Pilutkiewicz and Ms Carol Daws (Chief Executive Officer), with Ms Hitchins leading the Review process.

• [21] On 16 January 2024, Ms Pilutkiewicz sent a letter to the Applicant and the other staff that worked in the NWU, which had been approved by Mr Hunter, confirming that the Review of the staffing arrangements in the NWU would take place.[26] At this time, the Applicant was said to have been informed that her position could be modified or abolished.[27]

• [22] Prior to the Review commencing, it appeared that Ms Mahoney had organised staff planning meetings over a period of approximately six months to discuss the roles and allocation of tasks with the NWU.[28] Feedback received from the nurses detailed that they had too much work and the tasks allocated to the part-time support workers were better suited to a more senior role - according to Ms Mahoney.[29]

• [23] Ms Mahoney had then been involved in the process of discussing the Review individually with staff members. The meetings had been chaired by Ms Hitchins (except for one interview with a nurse, which Ms Mahoney conducted on her own). Each staff member impacted had a chance to give their opinion on the current staffing of the NWU and what they thought should happen.

• [24] According to Ms Mahoney, Ms Hitchins had suggested the introduction of a full-time senior support worker role, which would enable that role to be allocated a wider range of duties and more tasks than the existing part-time support worker positions, therefore lessening the workload on nurses.[30]

• [25] It was Ms Mahoney's evidence that all staff members interviewed agreed that the part-time support worker role should be more senior and she similarly held that opinion, which she communicated to Ms Hitchins as part of the Review.[31] Ms Mahoney informed Ms Hitchins to the effect that the staffing arrangements at the time were causing issues because there was too much pressure on the nurses, who were picking up too many tasks that should have been able to be completed by the part-time support workers.[32]

• [26] The Applicant gave evidence of having been interviewed by Ms Mahoney and Ms Hitchins as part of the Review on or around 16 - 19 January 2024.[33] The Applicant said that at no point during the Review or the subsequent interview process for the two positions she applied for, did she mention not wanting to work in a full-time capacity. The Applicant said that she informed Ms Mahoney and Ms Hitchins that the hours of the support workers needed to be increased and that the NWU required a scanner.[34]

• [27] The Review Committee met on 25 January 2024, to discuss the findings of the Review and to make recommendations.[35] The Review 'Internal Report'[36] set out the 'Recommendations of the Review Committee', which were as follows:

1. Approve the creation of one (1) FTE for a Senior Support Worker position and abolish the two (2) part time positions. This is in line with the current practice at the Serenity Withdrawal Unit.
2. The creation of the Senior Support Worker role will provide increased efficiency in terms of the completion of administrative tasks and provide more leadership and accountability in the role.
3. An additional four hours per fortnight of administration support be made available to the NWU by adding hours to the Administrative Officer position, to be worked at the NWU.
4. Circulate the recommendations to the team at NWU.
5. Ask for staff feedback on the recommendations.
6. Offer redundancy packages, if required to permanent part time workers occupying the support worker positions.
7. Advertise a new position of level 3 Support Worker.

• [28] Ms Mahoney said that the outcome of the Review was that one senior support worker position would be established.[37] Therefore, the two part-time support worker roles would be made redundant.[38]

• [29] By email dated 6 February 2024, Ms Pilutkiewicz informed the Applicant that the email was to confirm a conversation that had taken place on Monday, 5 February 2024, between the Applicant and Ms Hitchins regarding the recommendations of the Review.[39] The email detailed that the Respondent's preference was to have one full-time senior support worker to work within the NWU and that the Applicant was welcome to provide further feedback regarding the recommendations.[40]

• [30] On 8 February 2024, the Applicant met with Ms Mahoney and Ms Hitchins to discuss the outcome of the Review.[41] She was informed that the two part-time support worker positions were redundant and that a senior support worker position would be full-time. The Applicant said that she asked what the timeframe would be on the application and was advised it would be about three weeks.[42] The Applicant said she was surprised to hear that the position was not going to be internally advertised and that the position would be advertised widely to find the best person for the job.[43] The senior support worker position was advertised on the 19 February 2024 and applications closed on 26 February 2024, some 10 days later.[44]

• [31] On 15 February 2024, Ms Pilutkiewicz forwarded a letter to the Applicant, signed by Mr Hunter, that her position had been abolished as of 8 March 2024, with the new structure and position to commence on 11 March 2024.[45] The letter continued that for the Applicant to continue working within the organisation beyond 8 March 2024, she would need to apply to be selected for the new full-time senior support worker position.[46]

• [32] On 16 February 2024, Ms Pilutkiewicz emailed the Applicant the available positions within the Respondent; positions included the senior support worker position in Nannup in addition to roles at other sites (distant from Nannup).[47]

• [33] On 6 February 2024, the Applicant interviewed for the senior support worker position.

• [34] On 1 March 2024, Ms Pilutkiewicz emailed all staff of the Respondent, informing them of positions available in the organisation, which included three positions at Nannup. Those positions were: (a) night weekend supervisor full-time; and (b) night weekend supervisor causal; (c) Aboriginal support and liaison worker.[48]

• [35] On 8 March 2024, the Applicant lodged an application for the night weekend supervisor full-time position.[49]

• [36] The Applicant said that on 18 March 2024, Ms Mahoney informed her that she had been unsuccessful in her application for the senior support worker position in the NWU and then asked the Applicant to return later that morning for an interview for the night weekend supervisor position.[50] Whilst the Applicant claims to have felt bullied by this request (presumedly), the evidence of the Respondent was to the effect that the date of 18 March 2024 was mutually acceptable.

• [37] The Applicant was interviewed for the night weekend supervisor full-time position on 18 March 2024. In attendance were Ms Mahoney and Ms Slattery.[51]

• [38] By letter of 21 March 2024, Mr Hunter informed the Applicant she had been previously advised by Ms Mahoney that she was not successful in obtaining the vacant position and that her employment would end on 11 March 2024. The letter thanked her for agreeing to extend this period until 5 April 2024, at which point her employment would terminate and she would receive a redundancy payment.[52]

• [39] The Applicant said that she received a call from Ms Hitchins on 22 March 2024, informing her that she would not be able to work as a casual employee with the Respondent for three months and then she would need to reapply to rejoin the casual pool.[53] The Applicant said that she asked Ms Hitchins to double check as under the Agreement she considered that the redundancy of her part-time position should not impact the provision of her casual shifts.

• [40] By email dated 28 March 2024, Ms Pilutkiewicz emailed the Applicant and informed her that the redundancy pertained to her part-time position, but if the Applicant did not have a sufficient break in service of at least three months before undertaking any future casual roles, her redundancy payment would not be treated as a genuine redundancy by the Australian Tax Office. At hearing, Ms Pilutkiewicz gave evidence that if the Applicant wanted to work casually for the Respondent, she would need to have applied for a casual position.

• [41] Ms Pilutkiewicz's email of 28 March 2024, further detailed that clause 2.6.4 of the Agreement set out that the Respondent would endeavour to offer suitable employment, but that this required that similar and suitable appropriate employment opportunities are available.

• [42] On 3 April 2024, a meeting was held with the Applicant regarding an investigation into an email the Applicant had sent on 21 March 2024 to her personal email address from her Respondent email address.[54] The Respondent had alleged that the Applicant had breached confidentiality obligations.[55]

• [43] Whilst the Applicant was invited to bring a support person to the meeting, the Applicant notes that she declined to do so, informing the Respondent that she was concerned that the support person would be bullied.[56] Witnesses for the Respondent appear not to have recalled the Applicant advising that.

• [44] The Applicant asked to record the meeting, which the Respondent declined to do. However, the Respondent was said to have offered sending the notes of the meeting for the Applicant to check and sign - which the Applicant states did not occur. However, on 4 April 2024, Ms Hitchins sent an email titled 'Meeting summary', to which the Applicant responded to by email on 4 April 2024.

• [45] The Applicant's email dated 4 April 2024 detailed in part:

I did assure all of you that I had no intention of sharing any information regarding any client but that I was trying to find evidence that I am capable in my job, and that I have in fact been bullied! I also explained what information I had received a week ago (a copy lodged 3 years ago of a colleagues' grievance which names me as someone who had complained to him of bullying in the workplace). I realised then that my employer had failed to protect him from bullying and therefore I would need to get my facts straight. I watched this ex-collegaue get bullied by the manager, Therese Mahoney and had seen him discredited since he left and I wanted to protect myself from that. The emails sent to my phone were to do just that.

• [46] At hearing, the Applicant said that she had sent approximately 30 emails from her Respondent email address to her personal email address. In her written evidence, the Applicant said that she had admitted to the Respondent her mistake in that she had picked up an encrypted message that contained personal consumer information in an email thread.[57] The Applicant said that she did not realise that the encrypted information was in the thread that she was sending to herself, and she believed 'this is the only email the Respondent can prove that' she sent. The Applicant continued that she readily admitted sending more (presumedly emails to herself) as it was evidence gathering for 'proof of [her] skills'.[58]

• [47] The Applicant noted that at the meeting on 3 April 2024, she advised that she wished to lodge a grievance against Ms Mahoney.

• [48] Ms Pilutkiewicz gave evidence that the Applicant admitted sending the emails and would have been issued with a written warning for such misconduct.[59] However, Ms Pilutkiewicz understood that as it was close to the Applicant's last day of employment, it did not make sense to commence disciplinary action for the misconduct.[60]

• [49] The Applicant did not attend work on 4 April 2024, as she took the day off as a 'job search' day. Whilst the Applicant's last day of work was 5 April 2024, she was informed that she was not required to attend work and was paid for the day as usual.[61]

• [50] It would appear that following the Applicant's dismissal, the Respondent identified that the Applicant had forwarded 46 of its emails to her personal email account in the period of 24 March 2024 to 31 March 2024.

• [51] After the Review, the Nannup Treatment Centre appears to have been staffed with a clinical co-ordinator, four counsellor educators, six support workers, two part-time nurses (contractors) and a full-time senior support worker. In addition, there were casual support workers, a part-time welfare officer and a part-time administrative assistant.[62]

• [52] I am satisfied that the Applicant was protected from unfair dismissal, such that her application was made within the required period as prescribed in s 394(2) of the Act and she earned less than the high-income threshold and an enterprise agreement covered and applied to, her employment. Further, I consider that the Applicant had met the minimum employment period.

• [53] The Applicant contends that her dismissal was not by way of genuine redundancy on the basis that her position was still required, and it would have been reasonable in all the circumstances to have redeployed her. Further, while towards the end of her employment she sent from her Respondent email address an email to her personal email address that contained content that identified a consumer of the Respondent, the Applicant did not consider that such conduct warranted her dismissal. The Applicant stated that she had no case of misconduct to answer, and that the Respondent had no reason to terminate her employment and to have done so would be harsh and disproportionate.

• [54] 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.

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

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.

• [56] Section 396 of the Act provides that before considering the merits of an application for an unfair dismissal remedy order, 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 relating 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 Fair Dismissal Code;

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

• [57] 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.

• [58] 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.

• [59] The abovementioned factors are traversed, starting with whether the Applicant's job was no longer required to be performed.

5.1.1 No longer requires the person's job to be performed

• [60] To constitute a genuine redundancy, the Commission must be satisfied that the position was no longer required to be performed by anyone because of operational changes to the employer.[63] A mere 'desire to do things differently' would not be enough. This is because evidence of a mere desire does not say anything about 'operational requirements'.[64]

• [61] The Act does not define the term 'operational requirements'. However, the term 'operational requirements' appears to be of broad import. Changes to the operational requirements of the enterprise can arise from external events and internal events. It 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.[65] For example, a downturn in trade that reduces the number of employees required, and internal matters, such as decisions that result from a reassessment or reappraisal conducted by the business of its own needs,[66] can constitute operational reasons. Ultimately, it is the enterprise that determines what its operational requirements are.

• [62] Furthermore, an employee may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees,[67] including where there is the redistribution of tasks done by a particular person between several other employees, thus resulting in the person's job no longer existing.[68] It should be noted it is the 'job' that is no longer required to be performed, rather than the 'duties'.[69] The onus rests with the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.[70]

• [63] According to Mr Hunter, the Review resulted in a decision to restructure the staffing in the NWU, such that additional administrative time of two hours a week would be provided and the two part-time support workers roles would be made redundant and a senior support worker role established.[71] Whilst Mr Hunter gave evidence that since the Review, the Respondent had discussed that the hours of nurses should be increased and that the nurses had moved from being engaged as contractors to employees, it is not apparent that the recommendations of the Review contemplated such changes.

• [64] As to the establishment of the senior support worker position, it is observed that the removal of the two part-time support worker roles and the introduction of a senior support worker position, saw a drop in overall hours of the support worker position. However, Ms Hitchins gave evidence that through the Review it was identified that there was a lot of time wasted in the NWU due to the part-time support workers and nurses having to handover tasks, and at times they were not in contact with each other.[72] Ms Hitchins said that staff would often have to provide an update at the end of the day to other staff who were rostered the following day, resulting in an ineffective use of time.[73]

• [65] Ms Hitchins said that the new senior support worker role would perform all duties required, rather than the duties being divided between two part-time support workers - hence increasing efficiency and providing more consistent treatment within the service.[74]

• [66] Ms Hitchins detailed the differences on paper between the senior support worker position and that of the support worker position.[75] Whilst Ms Hitchins noted that the tasks of the senior support worker were those that the part-time support workers had been required to perform, she 'clarified' that they were 'not as explicitly.' Ms Hitchins added that when the two part-time support workers were in place with the nurses, all had indicated that it was not possible to properly complete all of the tasks on the current roster.[76]

• [67] A comparison of the redundant position and the new position show, according to Ms Hitchins, that the two positions differed regarding the classification level and therefore the new role required a greater level of skill as detailed at paragraph [23] of Ms Hitchins' statement. Whilst different terms are used to describe the essential competencies and experience of the two roles, there is a distinct overlap in essential competencies between the senior support worker position and that of the support worker position. Notwithstanding, the differences between the roles included an 'understanding of alcohol and other drug use issues', and 'knowledge of services and community resources relevant to the AOD sector'. However, the most significant difference was that the new position was on a full-time basis.

• [68] If the employer decides that its operational requirements have changed and, as a result, it no longer wants a particular role performed by anyone, this is plainly sufficient for the purpose of s 389(1)(a) of the Act. It follows from my analysis above that there has been a change in the operational requirements for the purposes of s 389, and the redundant position was no longer required to be performed by anyone because of this. Of course, some of the duties and responsibilities were still required to be performed - but this does not negate the part-time support worker role from having been made redundant.

• [69] 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.

• [70] If an employer is obliged to consult and fails to do so, it is said that there cannot be a genuine redundancy.[77] Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made.[78]

• [71] 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.[79]

• [72] It was uncontentious that the Agreement covered and applied to the Applicant in her employment and that the Respondent had complied with its obligation to consult with the Applicant regarding the redundancy of her position.

• [73] In Ulan Coal Mines Ltd v Honeysett,[80] (Honeysett) the Full Bench observed that s 389(2) placed a limitation on an employer's capacity to mount the defence that the dismissal was a case of a genuine redundancy. It expressed that the defence was not available if it would have been reasonable to redeploy the employee. This, of course, is a hypothetical question answerable only by reference to all the relevant circumstances.[81]

• [74] Whether it would have been reasonable to redeploy the employee is anchored to the point of time of the dismissal.[82] Further, in answering the question, consideration turns to 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 offered.[83]

• [75] The consideration of the reasonableness of redeployment also involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee; that is, her conduct and approach to the redeployment. In the case before me, it was undisputed that the Applicant had been informed she would have to apply for the senior support worker position and the night weekend supervisor full-time position. That is, the Applicant would not simply be transferred into one of those positions, but rather would need to compete against other candidates both internal and external.

• [76] In respect of applying for positions in a redeployment process, I note that the following passage of obiter in Honeysett is particularly apt in the circumstances of this case:

...It is an essential 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.[84]

• [77] I accept that there is no established requirement that an employer must conduct an internal process before seeking candidates from the external market, where the result is internal candidates compete against external candidates. Further, there is no requirement, mandated by s 389(2), that internal candidates be given preferential treatment.[85] However, in 'all the circumstances' of a particular matter, whether there was an internal process in advance of an external one is a relevant consideration in determining whether redeployment was reasonable.[86]

• [78] The Respondent appeared to press that the Applicant had received preferential treatment because she had been identified as an internal candidate for the two available positions and had been shortlisted. However, it is not apparent on the evidence that the Respondent ran an internal process to fill the two vacant positions, prior to running an external process.

• [79] Having considered all the evidence, however, I am satisfied it would not have been reasonable in all the circumstances for the Applicant to have been redeployed into the senior support worker position or the night weekend supervisor full-time position. This is because of the misconduct engaged in by the Applicant prior to the conclusion of her employment on 5 April 2024.

• [80] First, it is important to note that had the Applicant not engaged in the misconduct that I will latterly address, I am of the view that it would have been reasonable in all the circumstances to have redeployed the Applicant into the night weekend supervisor full-time position.

• [81] Ms Mahoney describes in her evidence having met with the Applicant to discuss the senior support worker role, together with Deborah McManus, and on a separate occasion having met with the Applicant to discuss the night shift supervisor position, with Ms Slattery.[87] Ms McManus was not called to give evidence, but Ms Slattery was. Ms Slattery stated that she interviewed the Applicant with Ms Mahoney for the night weekend supervisor position, with the Applicant having been given interview questions 15 minutes before the interview.[88] Ms Slattery's account that the Applicant was 'interviewed' for the night weekend supervisor position, accords with the evidence of the Applicant.

• [82] The point made, is that Ms Mahoney in giving her evidence appeared to step a fine line between wording that accurately reflected what had occurred and wording that gave rise to a different overall impression. Yes, Ms Mahoney met with the Applicant with respect to the night weekend supervisor position, but it was not to 'discuss' with the Applicant the role. It was, as attested to by Ms Slattery, to interview the Applicant. There is a significant difference in this context between 'discuss' and 'interview'.

• [83] Ms Mahoney presented as an unimpressive witness who seemed, at times, incapable of providing a direct answer in response to that what was asked of her. She was cautioned as such. In contrast, Ms Slattery's evidence was absent obfuscation and in circumstances where there was divergence between the evidence of Ms Mahoney and Ms Slattery, it is Ms Slattery's evidence that I prefer.

• [84] Ms Slattery gave evidence that she had recently been allocated supervision of some night weekend supervisors, noting that historically the night weekend supervisors had been managed by Ms Mahoney.[89] At hearing, Ms Slattery was asked whether she considered there was a difference between the duties and responsibilities attributed to the role of a casual night weekend supervisor position and that of a full-time night weekend supervisor position. Ms Slattery responded to the effect of 'no'.

• [85] Ms Slattery's response was contrary to the position of Ms Mahoney, who, at hearing, identified several differences between the role of a casual night shift supervisor position and a full-time night shift supervisor position. Whilst not referred to in Ms Mahoney's witness statement, in response to a question of the difference between the full-time and casual role, Ms Mahoney identified several duties that were not performed by casual night weekend supervisors, including convening particular groups.

• [86] It should be noted, I had identified that the Applicant had, for some time, been working as a casual night weekend supervisor and that her IFA had attached to it a JDF for the 'TC Night Weekend Supervisor Level 2' that appeared to be a 'version 3' and dated 16 January 2020. The Respondent had, separately, tendered into evidence, a JDF for the 'Night/Weekend Supervisor Level 2' that was the 'version 1' with a date of review of 4 July 2019. That JDF had been provided to the Applicant by Ms Pilutkiewicz, by email dated 6 March 2024, titled 'Job Ad Night Weekend - Nannup Full-time', in response to the Applicant asking for a copy.[90] It struck me that in circumstances where the Applicant had been performing her duties as the casual night weekend supervisor for an extended period under a more recent version of the JDF, she should be amply qualified and experienced to perform the role so described in the version 1 JDF.

• [87] Ms Mahoney clearly did not think that the case. Her review of the Applicant's performance was aptly summed up by her remarks:

I was of the opinion that she was not qualified or suitable for the job of Senior Support Worker and the increased responsibility that it would bring. I cannot identify any training that would have changed this, because Susan's weaknesses were in communication, organisation and professional boundaries. She had been provided all the available training to address these issues, but there had been no improvement.

I had noticed that Susan had struggled with managing residents, so I offered her training regarding boundaries early on in her employment and continued to talk to her about this throughout her employment. However, in my opinion she continued to prioritise ensuring that residents "liked" her, rather than ensuring that crucial information was captured as was part of her role. To me, this meant she was not appropriate for either the Senior Support Worker role or the Night Shift Supervisor position, and there was not any training that would realistically...

• [88] The Applicant had been provided with a written warning of 1 August 2022, which detailed that it was expected that her job performance and conduct improve and that she address particular areas of concern immediately, including: (a) following the direction of the Manager and Clinical Coordinator; (b) communication style must improve regarding tone, volume and the appropriateness of the content; and (c) listening skills to improve particularly with vulnerable consumers.[91] Ms Slattery provided evidence at paragraph [29] of her witness statement in respect of performance concerns with the Applicant and evidently, Ms Mahoney was of the view that the Applicant had weaknesses in communication, organisation and professional boundaries. However, it is not apparent that the Respondent implemented a performance improvement plan or issued any further written warning, regarding these purported issues.

• [89] When considering the reasonableness of redeployment, the job in which the employee is to be redeployed must be suitable, such that the employee should have the skills and competence required to perform it to the required standard either immediately or within a reasonable period of retraining. While the Respondent had identified some issues regarding the Applicant's performance, as referred to at paragraphs [87] and [88], evidently those issues were of insufficient seriousness to warrant further warning, performance management or other disciplinary action. The Applicant's performance review of 2023 sets out the following by her line manager, Ms Mahoney:

Sue works well as part of the NWU team and has been welcoming to the new nurse and works well with her in her capacity as support worker. Sue has become efficient in conducting entries and exits to the Withdrawal unit. Sue is working on her boundaries after receiving a written warning about a breach and appears to have taken some learning from this incident. Sue attended some core training including case not, risk assessment and handling difficult behaviours.[92]

• [90] In Technical and Further Education Commission T/A TAFE NSW v Pykett,[93] the Full Bench of this Commission expressed that it is not necessary to identify a particular job or position in which the dismissed employee could have been redeployed, rather the Commission must be satisfied on balance, based on the evidence, that there was a position within the employer's enterprise to which it would have been reasonable to redeploy the employee. In this case, I am of the view that had not the Applicant engaged in misconduct, it would have been reasonable for the Applicant to be redeployed within the Respondent organisation at the Nannup location.

• [91] However, prior the Applicant's last day of employment she engaged in misconduct, which in my view constituted a valid reason for her dismissal.

• [92] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a 'valid reason' for dismissal.[94]

• [93] In summary, where the reason for termination of employment relates to an employee's capacity or conduct, it is not the Commission's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee's capacity or conduct.[95]

• [94] In the context of the present case, whether the reason for dismissal was sound, defensible or well-founded depends in part on the Respondent's Code, Privacy Policy and the Applicant's contractual obligations, her general duties as an employee, and whether the Respondent was entitled to give the direction that it did.

• [95] The first observation to make is that the consumers, residents, clients or patients in the NWU, or within the greater Nannup Therapeutic Community are accessing services due to addiction issues. That is, issues that are fundamentally private and sensitive in nature because they concern their health.

• [96] I have noted that the Applicant's behaviour in the workplace was regulated by the Code, with all workers required to work in accordance with the Code.[96] Workers were required to adhere to organisational policies and procedures,[97] and to have a sound knowledge of, implement and comply with all the Respondent's policies and procedures, and all relevant standards and legislation.[98] All of the Respondent's employees were to act in the best interests of consumers and to ensure privacy and confidentiality of consumer personal details in accordance with the Australian Privacy Principles and the Privacy Policy.[99]

• [97] I consider it safe to presume that consumers had provided their personal and sensitive information to the Respondent to enable them to access the services of the Respondent and, perhaps, other allied health care providers or medical practitioners. The Privacy Policy set out that the consumer's rights to confidentiality and privacy extended to the Respondent requesting and using the consumer's information that is only necessary to assist in the provision of services to the consumer.[100]

• [98] An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable.[101] In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday,[102] ('Darling Island Stevedoring') it was held:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.

• [99] The Full Bench in Briggs v AWH[103] stated that the determination of whether an employer's direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer, therefore, is not required to demonstrate that the 'direction issued was the preferable or most appropriate course of action, or in accordance with "best practice", or in the best interests of the parties'.[104] Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.[105]

• [100] Given the context in which the Respondent operates, I consider the obligations placed upon the Applicant in respect of maintaining in confidence a consumer's personal and sensitive information and using the consumer's information as is only necessary to assist in the provision of services to the consumer, were lawful and reasonable instructions.

• [101] It is an indisputable fact that the Applicant sent to her personal email address, emails of the Respondent.

• [102] Prior to the last day of the Applicant's employment, Ms Hitchins, Ms Slattery and Ms Pilutkiewicz met with the Applicant for the purpose of addressing with her an email that had been sent on 31 March 2024 to the Applicant's personal email address from her work email, which contained consumer information. The Applicant confirmed she had sent the email and further noted that she had gone through her phone and ensured that she had deleted any consumer information and had deleted the messages from the deleted box. The Applicant is said to have further stated in the meeting that she had no intention of sharing any confidential information with a third party.

• [103] It is evident that the Applicant did not seek the Respondent's permission to send the email. Had the Respondent not identified that that the Applicant had sent an encrypted email to her personal email address, it is highly unlikely that the Respondent would have been aware of the breach of its Privacy Policy and Code.

• [104] The Applicant submits that that the Respondent claims that by admitting her mistake of sending an encrypted message containing consumer information, she breached the Code and Privacy Policy. However, the Applicant says that by admitting her mistake she is accepting responsibility for her actions and believes she has demonstrated to the Respondent that there was no intention of sharing any consumer information with anyone. The Applicant notes that the emails were going from her work email to her personal email, and no further.

• [105] After 5 April 2024, the Respondent identified that the Applicant had sent 46 emails from her work email address to her personal email address. It is not clear whether those emails contained personal or sensitive information of consumers.

• [106] The relevance of this discovery post 5 April 2024 is obviously at issue, given the Applicant's employment terminated on 5 April 2024. As to whether the 46 emails can be considered in the context of whether the Respondent's actions were reasonable when it took the decision not to redeploy her, notwithstanding knowledge of the 46 emails came to light after her dismissal, I am of the view they can.

• [107] Previous decisions of the Commission have considered whether information acquired after the time of dismissal can be taken into account, even if the employer was unaware of those facts at the time and did not rely on them when the dismissal occurred. For example, in the matter of Dundovich v P&O Ports,[106] the Full Bench considered the circumstances that existed when the decision to terminate was made, and whether they could extend to include circumstances which were not known to the employer at the time of the dismissal but were known at the time of the unfair dismissal hearing. The Full Bench concluded at [79]:

... That this fact was not known to the employer at the time of the decision to terminate Mr Dundovich's employment is not determinative. As the Full Bench in McLauchlan's case observed, facts which existed at the time of dismissal but only came to light after the decision may render a termination of employment harsh, unjust or unreasonable.

In the decision in Lane v Arrowcrest Group Pty Ltd,[107] von Doussa J concluded at 456:

In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances.

• [108] I am satisfied, in response, that these decisions confirm that the reasons for termination relied upon need not be confined to the reasons given at the time of termination and can extend to include other reasons if they can be established by evidence provided to the Commission at the time of hearing. Hence, whilst the Respondent purported not to redeploy the Applicant because she did not have the requisite qualifications[108] or she had gone off track in the interview for the position or her responses were limited,[109] the Respondent may rely on misconduct that comes to light in the redeployment period prior to the dismissal - whether the Respondent becomes aware of the evidence prior to the dismissal or post the dismissal.

• [109] Before the Applicant was dismissed on 5 April 2024 by way of redundancy, the Respondent was aware that the Applicant had sent, using her work email, an email to her personal email address that included information that identified a consumer of the Respondent. Subsequent to her dismissal, the Respondent identified that the Applicant had sent 46 emails from her work email to her personal email address.

• [110] The Applicant had been informed of the alleged misconduct of sending an email from the Respondent email account to her personal account and had been provided the opportunity to respond to the allegation. The Applicant admitted to sending the email in question, in addition to others. It was evident that the Applicant had not sought the Respondent's permission to send the email to her personal email account. If the Respondent's IT system had not identified the sending of an encrypted message to a personal email account, I doubt that the Applicant would have voluntarily disclosed such information. The Applicant admitted her 'mistake' only when confronted with it.

• [111] Ms Hitchins gave evidence that as a result of the evidence provided by IT and the Applicant's answers in the meeting of 3 April 2024, it was concluded that the Applicant had breached the Code and had engaged in serious misconduct. However, because the Applicant's employment was due to end due to redundancy, no further action was taken with regard to the serious misconduct.[110]

• [112] I concur with Ms Hitchins' view that the Applicant's conduct constituted serious misconduct.

• [113] The Applicant failed to appreciate the seriousness of her actions. The Applicant states she had no intention of sharing any consumer information with anyone but also presses that she sent the emails to herself to demonstrate competency to prove that she was doing a good job. The purpose of the Applicant sending herself the Respondent's emails was not for the purpose of using the consumer's information as was only necessary to assist in the provision of services to the consumer, but to support the Applicant's future argument that she was competent in her job. It was a self-serving act that did not put at the forefront the obligations she owed, as an employee of the Respondent, to those consumers that were in the Respondent's care and to the Respondent. Throughout the hearing, it was emphasised by the Respondent that such consumers were vulnerable - which is understandable given that they have accessed the services of the Respondent to assist them with drug and other substance addictions. The Applicant worked within an environment where she was trusted to deal with the personal and sensitive information of consumers in accordance with the Code and Privacy Policy. She failed to do so.

• [114] In the circumstances so described, I am satisfied that it was not reasonable to have redeployed the Applicant in the Respondent organisation.

6 The Applicant's casual position as night weekend supervisor

• [115] Had not the Applicant's employment ended in the manner that it did, it was open to the Respondent to have terminated the Applicant's employment on the basis of serious misconduct.

• [116] Having considered each of the matters specified in s 387 of the Act, I am satisfied that the termination of the Applicant's casual employment was not harsh or unjust or unreasonable. There was a valid reason for the Applicant's dismissal of which she was informed and had the opportunity to respond. At the meeting on 3 April 2024, the Applicant was not denied a support person. As to the factors in ss 387(f) and (g), I consider them to be neutral in the circumstances, and in respect to other matters as described in s 387(h), the termination of the Applicant's employment was not disproportionate in light of the serious misconduct engaged in by the Applicant. However, I further note it is not apparent that the Applicant was denied payment for her notice period.

• [117] I have found the Applicant's dismissal was not unfair. In respect of her position as a part-time support worker, this was a case of genuine redundancy within the meaning of s 389(1) of the Act and the circumstances in s 389(2) did not exist. Further, the Applicant's dismissal in respect of her casual position was not not harsh or unjust or unreasonable. I must therefore dismiss her application. An Order to this effect will be issued with this decision.

• [118] Insofar as it is necessary to do so and observing that the Respondent did not seek a confidentiality order, a Confidentiality Order[111] will, nevertheless, issue under s 594(1)(c) of the Act, that the name of the person in the 'encrypted email' will not be disclosed to any person and such information is to be kept confidential. It is therefore incumbent upon the Applicant and the Respondent to ensure that the privacy of such person and that confidence is maintained regarding the material filed.

[1] Digital Hearing Book, 57,59 (DHB).

[3] Witness Statement of Michele Pilutkiewicz, [13] (Pilutkiewicz Statement).

[4] DHB (n 1) 313; Witness Statement of Patricia Hitchins, [13] (Hitchins Statement).

[6] Pilutkiewicz Statement (n 3) [14].

[9] PR776889.

[20] [2012] FWAA; AE895382; PR526340.

[21] Witness Statement of Simon James Cameron Hunter, [12] (Hunter Statement).

[23] Witness Statement of Therese Mahoney, [8] (Mahoney Statement).

[33] Witness Statement of Susan Retter, 5 (Retter Statement).

[36] Hitchins Statement (n 4) Annexure PH-4.

[59] Pilutkiewicz Statement (n 3) [29].

[61] DHB (n 1) 336; Pilutkiewicz Statement (n 3) [29].

[63] Fair Work Act 2009 (Cth) s 389(1)(a).

[64] Baker v Roy Morgan [2013] FWC 6694, [22].

[65] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496; (1996) 69 IR 370, 373.

[66] Yitzhak Shachar v Electrical Home Aids Pty Ltd t/a Godfreys [2018] FWC 4892, [29].

[67] Dibb v Federal Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388, 404-405.

[68] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1548]; Kekeris v A. Hartrodt Australia Pty Ltd T/A A.Hartrodt [2010] FWA 674, [23].

[69] Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32, [17].

[70] Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864, [34].

[75] Ibid [22] and Annexures PH2 and PH3.

[77] See also UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241; (2012) 215 IR 263.

[78] Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202, 218.

[79] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd [2001] AIRC PR911257 [25].

[80] [2010] FWAFB 7578, [26].

[85] Alison Bleyerveen v Uniting Mission and Education [2019] FWC 4818, [34].

[88] Witness Statement of Kellie Slattery, [17] (Slattery Statement).

[93] [2014] FWCFB 714; (2014) 240 IR 130, 139.

[94] [2013] FWCFB 6191, [36].

[95] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[101] R v Darling Island Stevedore & Lighterage [1938] HCA 44; (1938) 60 CLR 601, 621-2.

[103] [2013] FWCFB 3316, [8].

[105] [1938] HCA 44; (1938) 60 CLR 601, 622.

[106] (Unreported, Australian Industrial Relations Commission, Full Bench, 8 October 2002) PR923358.

[107] [1990] 27 FCR 427.

[108] Slattery Statement (n 88) [20].

[110] Hitchins Statement (n 4) [46].

[111] PR776890.

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