1
Fair Work Act 2009
s.394—Unfair dismissal
Alana Fayad
v
NobleOak Aspire Pty Ltd
(U2020/8453)
COMMISSIONER JOHNS SYDNEY, 10 DECEMBER 2020
Application for an unfair dismissal remedy – Jurisdictional objection – Genuine redundancy.
Introduction
[1] This decision is about whether the termination of employment of Alana Fayad
(Applicant) was a case of genuine redundancy and, if not, whether the dismissal was unfair.
Ms Fayad’s former employer, NobleOak Aspire Pty Ltd (Respondent/Employer/NobleOak),
terminated her employment on 4 June 2020.
[2] On 18 June 2020 Ms Fayad made an application to the Fair Work Commission
(Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) seeking a remedy
for unfair dismissal. The Applicant seeks compensation.
[3] On 30 June 2020, NobleOak filed a response to the unfair dismissal application. It
objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it
contended, the dismissal was a case of genuine redundancy.
[4] If the termination was a genuine redundancy Ms Fayad’s application for an unfair
dismissal remedy must be dismissed. If the termination was not a genuine redundancy it
becomes necessary to determine if termination of employment was unfair.
[5] Conciliation was attempted, but the dispute remained unresolved.
[6] Consequently, the matter was listed for a jurisdictional and merits hearing on 18
August 2020. At the commencement of the hearing on 18 August 2020 it became readily
apparent that the Respondent was woefully underprepared despite having been provided with
every opportunity to file and serve material it wanted to rely upon. It became necessary to
reprogram the matter for hearing. The resumed hearing occurred on 22 September 2020.
[7] At the hearings:
a) the Applicant was represented by Mr John Vizzone, partner at Vizzone, Ruggero,
Twigg Lawyers. I gave Mr Vizzone permission to represent the Applicant under
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DECISION
E AUSTRALIA FairWork Commission
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s.596 of the FW Act because I was satisfied that the jurisdictional objection
invested the matter with complexity and I would be assisted in the efficient
conduct of the matter if I granted the Applicant permission to be represented.
The Applicant gave evidence on her own behalf and was cross-examined.
b) the Respondent was represented by Mr Joey Yusnanda, the Respondent’s Head of
People and Culture. Mr Yusnanda gave evidence and was cross-examined. He also
called, Matthew Minney, Head of Operations and Claims, to give evidence. Mr
Minney was cross-examined. There was also evidence from Matthew Wilson, the
Chief Risk Officer. He was not required for cross-examination.
[8] In relation to the matter the parties filed the following materials. In coming to this
decision the Commission, as presently constituted, has had regard to the filed material, the
oral evidence and other documents tendered during the determinative conference:
Exhibit
No.
DESCRIPTION
1 Forms: F2 Application
2 Forms: F3 Employer Response
3 Respondent: Email (purported submissions) filed and served on 21 July 2020
A Screenshot of Seek Job Advertisements included in email of 21
July 2020
B Board paper on structure review dated 15 May 2020
C Notice of structure review dated 2 June 2020
D Internal job vacancy email dated 2 June 2020
E NobleOak internal recruitment process for applicants (attached to
job vacancy email of 2 June 2020)
F NobleOak employee referral program (attached to job vacancy email
of 2 June 2020)
G Job description – Claims Team Leader (attached to job vacancy
email of 2 June 2020)
H Job description – Digital Performance Manager (attached to
job vacancy email of 2 June 2020)
I Job description – Genus Remediation Operations Manager (attached
to job vacancy email of 2 June 2020)
J Job description – Office and SLT Administrator (attached to
job vacancy email of 2 June 2020)
K Job description – Risk and Compliance Manager (attached to
job vacancy email of 2 June 2020)
L Job description – Sales Coach (attached to job vacancy email of 2
June 2020)
M Internal job vacancy email dated 3 June 2020
N Job description – Head of IT (attached to job vacancy email of 3 June
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2020)
O Job description – EA to CEO and CFO (attached to job vacancy
email of 3 June 2020)
P Termination letter dated 4 June 2020
4 Applicant: Submissions dated 10 August 2020
5 Applicant: Witness Statement of Alana Fayad dated 7 August 2020
A Annexure A to Statement of Alana Fayad – Employment Agreement
B Annexure B to Statement of Alana Fayad – Email regarding 9M
in Sales
C Annexure C to Statement of Alana Fayad – Notice of structure review
D Annexure D to Statement of Alana Fayad – Termination letter
E Annexure E to Statement of Alana Fayad – Client Service
Consultant job description
F Annexure F to Statement of Alana Fayad – Jora job advertisements
6 Respondent: Outline of arguments – objections
7 Respondent: Outline of arguments – merits
8 Respondent: Response to applicant’s materials
9 Respondent: Statement of evidence – Joey Yusnanda
A Emails with applicant dated 2-3 June 2020
B Emails with Kate Ashford dated 2-3 June 2020
C Email with Swiss RE on 10 August 2020
D Genus call volumes table
10 Vacancies 1 – roles advertised
11 Vacancies 2 – roles advertised
12 Internal redundancy plan - referencing selection criteria
13 Redundancy selection process - email correspondence with Matt
Minney, Head of Operations
14 Email between Andrew and Swiss Re
15 Witness statement of Mr Matt Minney, Head of Operations and
Claims dated 1 September 2020
16 Witness statement of Matt Wilson, Chief Risk Officer dated 1
September 2020
17 Skills Matrix document
18 Job Alert, dated 12 June 2020
19 Job Alert, dated 15 June 2020
20 Email from Mr Minney to Applicant dated 4 June, 4.38 pm
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Background
[9] I make the following findings of fact:
a) Prior to her employment with the Respondent the Applicant was employed by the
Freedom Insurance Group Limited (Freedom). The Applicant commenced her
employment with Freedom on 23 June 2014.
b) In or around April 2019 the Respondent acquired parts of the business of Freedom.
c) The Applicant then commenced employment with NobleOak Aspire Pty Ltd.
NobleOak recognised the Applicant’s prior service with Freedom (i.e. back to 23
June 2014).
d) The Applicant was employed as a “Client Service and Retention Consultant”. She
mainly worked in Genus Life Insurance Services part of NobleOak (Genus
Position).
e) The Genus Position was essentially a call centre role. The Applicant was
responsible for answering calls, responding to queries and complaints, explaining
policies and retaining customers.
f) At no time during the Applicant’s employment did the Respondent raise issues
with her about her conduct or performance.
g) However, the Applicant acknowledges that she had utilised “a large amount sick
leave.” She estimated that she had utilised 30 days of sick leave in the 12 months
prior to the dismissal because she is suffering from a medical condition. The
Respondent was aware of the condition. The Applicant provided medical
certificates when she utilised sick leave.
h) At the time of the dismissal the Applicant was paid a salary of $65,974 per annum.
i) The Applicant’s employment was covered by a modern award, namely the
Banking, Finance and Insurance Award 2020 (BFI Award).
j) Clause 28 of the BFI Award provides as follows:
28. Consultation about major workplace change
28.1 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.
28.2 For the purposes of the discussion under clause 28.1(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.
http://awardviewer.fwo.gov.au/award/show/MA000019#P707_62775
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28.3 Clause 28.2 does not require an employer to disclose any confidential
information if its disclosure would be contrary to the employer’s interests.
28.4 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 28.1(b).
28.5 In clause 28 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.
28.6 Where this award makes provision for alteration of any of the matters
defined at clause 28.5,such alteration is taken not to have significant effect.
k) In March 2020 a paper was submitted to the board of NobleOak about a
restructure. The restructure was aimed at assisting NobleOak manage through the
COVID-19 pandemic and reduce its cost base.
l) On 11 May 2020 Mr Minney was advised by the Respondent’s CEO of the need to
restructure the Respondent’s operating model.At some stage after 11 May 2020 Mr
Minney decided to amalgamate to business lines, namely Genus Life Services and
NobleOak Life.
43 roles were impacted. 37 new roles were created in the amalgamated
department.
Within the Client Services departments of each of the two previous business lines
there were 20 redundant positions as follows:
i. 11 x Genus Client Service Consultants (of which one was the Applicant);
and
ii. 9 x NOL Client Service Specialists.
The amalgamation of roles resulted in 16 new roles as follows:
i. 8 x Back Office Client Services Consultants;
ii. 8 x Front Office Client Services Consultants.
4 x client roles did not fit into the new structure (including that of the Applicant).
m) On 15 May 2020 there was a board update. The paper set out the next steps to
refine the Respondent’s operating model. It was resolved to establish a new Senior
Leadership Team (SLT) and refine the management structure. Most of the savings
http://awardviewer.fwo.gov.au/award/show/MA000019#P718_63740
http://awardviewer.fwo.gov.au/award/show/MA000019#P704_62412
http://awardviewer.fwo.gov.au/award/show/MA000019#P707_62775
http://awardviewer.fwo.gov.au/award/show/MA000019#P712_63097
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were to come from the Genus business. The board paper noted that “we expect the
new design to be a shock to some team members.”
n) On 19 May 2020 Mr Minney made a decision about who would be allocated roles
in the new structure. He did not include the Applicant.
o) On 1 and 2 June 2020 the Applicant was on personal leave.
p) On 3 June 2020,
i. at the beginning of the work day Mr Minney sent an email inviting the
Applicant to a meeting.
ii. later that morning the meeting occurred. In addition to Mr Minney and the
Applicant, Mr Yusnanda, the Head of People and Culture of the
Respondent was also present.
iii. the Applicant was informed that her position was redundant due to a
company restructure.
iv. the meeting went for between 15 – 20 minutes.
v. during the meeting the Applicant “broke down and cried”.
vi. at the conclusion of the meeting, the Applicant was given a letter dated 2
June 2020. The letter stated as follows,
“The purpose of this letter is to confirm the outcome of a recent review of
the overall NobleOak company structure, our operational requirements,
and what this means for you.
As you know, the COVID-19 pandemic has had a significant impact on
the economy and many businesses. Unfortunately, while NobleOak has
managed through this extremely well, we are still impacted and are
required to delay our planned IPO and associated capital raise. As we
enter the next phase of this pandemic, we have had to refine our
operating model to ensure it is highly effective, lean, and promotes high
performance as access to capital is limited.
As a result, several positions will unfortunately no longer be required.
This decision is in no way a reflection on any individual's
performance, but rather it is driven from a business need to ensure that
NobleOak can effectively manage our current position, as well as
enable us to achieve our future business aim and strategy.
The impact of this to your employment is that your role will
unfortunately be made redundant. We have considered options for
redeployment and assessed your suitability based on a selection criteria
consisting of skills, performance, behaviours, experience and
qualifications but unfortunately we have been unable to identify a
suitable alternative role to redeploy you to.
I encourage you to spend the next couple of days thinking about any
other measures that we could consider to redeploy you or mitigate the
effect of your position being made redundant.
Please also refer to the attached list of vacancies we currently have at
NobleOak.
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I am available to discuss options with you over the next couple of days if
you require. Please let me know if you would like to meet. If so, feel free
to bring along a support person and let me know a suitable time for us to
meet.
The implementation of this change will be effective from 5 June 2020. If
redundancy proceeds and you are not redeployed, you will be paid the
estimated redundancy package in Appendix l.
I understand that this may be a difficult time for you, and I am committed
to providing you with support and assisting you in any way that I can.
Please be reminded that our Employee Assistance Program (EAP) is
available through Access EAP for free confidential counselling on 1800
818 728.”
i. the Applicant left the meeting and commenced authorised leave.1
q) As at 3 June 2020 (and in the weeks after dismissal) there were a number of “Sales
and Service Consultant” positions vacant.
r) Between the time when the Applicant left the office and 4.38 pm on 4 June 2020
no representative of the Respondent made any contact with the Applicant.
s) Although the letter provided to the Applicant on 3 June 2020 stated that “this
change will be effective from 5 June 2020,” at 4.38 pm on 4 June 2020 (i.e. the
next afternoon after the meeting) Mr Minney terminated Ms Fayad’s employment.
He sent an email attaching a redundancy confirmation letter. The letter read,
The purpose of this letter is to confirm the outcome of the consultation process
that we have undertaken with you since our meeting on 2 June 2020, where we
explained that we have reviewed the NobleOak operating model, our current
capital position , and what this means for your position and you.
I confirm that during the consultation period we discussed the redundancy
process with you and alternatives to termination of your position, including
redeployment within NobleOak. We further discussed measures to mitigate the
effect of the redundancy. Unfortunately, there are no alternative positions
within NobleOak that you could reasonably be redeployed to at this time and
no other steps can be taken to avoid termination of your employment by reason
of redundancy.
Therefore, your position will be made redundant and your employment with
NobleOak will end on 5 June 2020. As per your employment agreement, you
will be paid four weeks in lieu of working your notice period (without being
required to work during this period). You will also be paid your accrued annual
leave and any outstanding remuneration owed, including superannuation up to
and including your last day of employment. In addition, you will be paid your
redundancy entitlement. A complete schedule of your final pay is attached to
this letter in Appendix l. This payment will be deposited into your bank
account by Friday 12th June 2020.
1 Transcript PN526-7.
[2020] FWC 6475
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I would like to thank you for your valuable contribution during your
employment' with us and wish you all ' the very best in your future.”
Note: There was no meeting on 2 June 2020. The meeting occurred after 9.00 am
on 3 June 2020. Clearly the redundancy confirmation letter was prepared in
advance in anticipation of what was to happen on 2 June 2020 and in the days
after. To this extent the redundancy confirmation letter bears very little
resemblance to what happened in actuality. It is a work of fiction.
t) After the receipt of the redundancy confirmation letter the applicant sent an email
with some questions about the quantum of the payment and payment
arrangements. During the hearing before me the Respondent’s witnesses
complained that the Applicant was not interested in discussing redeployment and
was only interested in confirming payment arrangements. I reject their account of
events. It is very clear that the Applicant only raised these matters after she had
already been sacked. The email train totally disproves the Respondent’s witnesses’
version of events.
u) The Applicant was paid the following,
Termination date 4 June 2020
Salary (pay period 1 June – 4 June) $1,015.00
Payment in lieu of notice $5,075.00 (4 weeks)
Redundancy/severance payment $12,687.49 (10 weeks)
Unused annual leave $622.29 (18.39 hours)
Gross Total $25,729.66
Less PAYG $2,300.70
Net Total $23,428.96
Preliminary matters
[10] In the present matter it was common ground (and I am satisfied that):
a) The Applicant was protected from unfair dismissal.2
b) The Respondent dismissed the Applicant.3
c) The Respondent is not a small business with the consequence that the Small
Business Fair Dismissal Code is not relevant.4
d) the application was made within the period required in subsection 394(2) of the
FW Act.
Was the dismissal a genuine redundancy?
[11] Section 389 of the FW Act defines the meaning of genuine redundancy:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
2 s.382 of the FW Act.
3 s.385(a), s.386 of the FW Act.
4 s.385(c) of the FW Act.
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(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:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[12] In summary there are three aspects to the test for genuine redundancy:
a) First, the job must be no longer required,
b) Secondly, there must consultation (if, as in the present matter, a modern award
applies), and
c) Thirdly, redeployment must not be reasonable in all the circumstances.
Was the job no longer required?
[13] I have set out my findings of fact above. Having regard to those findings I am
satisfied that Ms Fayad’s job (the Genus Position) was no longer required.
[14] The process for selecting employees for redundancy is not relevant to whether the
dismissal was a genuine redundancy or whether there was a valid reason for dismissal based
on capacity.5
Did NobleOak comply with its consultation obligations?
[15] The obligation on an employer to consult about redundancy only arises when a
modern award or enterprise agreement applies to an employee and that modern award or
enterprise agreement contains requirements (which they often do) to consult about
redundancy. In the present matter the Respondent was obliged to consult under clause 28 of
the BFI Award.
[16] If an employer was obliged to consult and fails to do so, there cannot be a genuine
redundancy.6
[17] It is well established that:
5 UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (Acton SDP, Kaufman SDP, Bissett C, 14 August 2012) at paras 26–27,
[(2012) 215 IR 263].
6 See for example UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (Acton SDP, Kaufman SDP, Bissett C, 14 August
2012), [(2012) 215 IR 263].
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb5241.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb5241.htm
[2020] FWC 6475
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a) Consultations should be meaningful and should be engaged in before an
irreversible decision to terminate has been made.7
b) “Consultation is not perfunctory advice on what is about to happen ...
[c]onsultation is providing the individual, or other relevant persons, with a bona
fide opportunity to influence the decision maker.”8
c) “The purpose of a consultation clause is to facilitate change where that is
necessary, but to do that in a humane way which also takes into account and
derives benefit from an interchange between worker and manager.”9
[18] The following was observed by Sachs LJ in Sinfield v London Transport Executive:10
“Consultations can be of very real value in enabling points of view to be put forward
which can be met by modifications of a scheme and sometimes even by its withdrawal.
Any right to be consulted is something that is indeed valuable and should be
implemented by giving those who have the right an opportunity to be heard at the
formative stage of proposals – before the mind of the executive becomes unduly
fixed.”11
[19] I have set out my findings of fact above concerning the chronology of events. In
summary, a definite decision was made to make Ms Fayad’s position redundant in May 2020.
The only meeting with Ms Fayad occurred at around 9 am on 3 June 2020. Ms Fayad then
took authorised leave. At 4.36 pm the next day (i.e. 4 June 2020) NobleOak terminated Ms
Fayad’s employment.
[20] The evidence of the Respondent’s witnesses was to the effect that the Applicant was
consulted. Further, that the Applicant was asked about her interest in the Sales and Service
Consultants role and that the Applicant was not interested in the same.
[21] Ms Fayad’s evidence was as follows,
“32. I know that the letter says, “We have considered options for redeployment and
assess your suitability based on a selection criteria consisting of skills, performance,
behaviours, experience and qualifications but unfortunately we have been unable to
identify a suitable alternative role to redeploy you to”.
33. I agree that they said that they considered redeployment for me and that I was
unsuitable.
7 Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company, Print R0234 (AIRCFB, Ross VP,
MacBean SDP, Deegan C, 21 December 1998) at paras 78–80, [(1998) 88 IR 202]; cited in Steele v Ennesty Energy Pty
Ltd T/A Ennesty Energy [2012] FWA 4917 (Jones C, 21 June 2012) at para. 20.
8 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Vodafone Network Pty Ltd, PR911257 (AIRC, Smith C, 14 November 2001) at para. 25.
9 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
QR Ltd (No 2) [2010] FCA 652 (22 June 2010) at para. 49.
10 Sinfield v London Transport Executive [1970] Ch 550.
11 ibid., 558.
https://www.fwc.gov.au/documents/Benchbookresources/unfairdismissals/Sinfield_v_London_Transport_Executive.pdf
http://www.austlii.edu.au/au/cases/cth/FCA/2010/652.html
http://www.austlii.edu.au/au/cases/cth/FCA/2010/652.html
https://www.fwc.gov.au/decisionssigned/html/PR911257.htm
https://www.fwc.gov.au/decisionssigned/html/PR911257.htm
https://www.fwc.gov.au/decisionssigned/html/2012fwa4917.htm
https://www.fwc.gov.au/decisionssigned/html/2012fwa4917.htm
https://www.fwc.gov.au/documents/decisionssigned/html/r0234.htm
[2020] FWC 6475
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34. I further note that the letter says, “I encourage you to spend the next couple of
days thinking about any other measures that we could consider to redeploy you or
mitigate the effect of your position being made redundant”.
35. I do not recall this being discussed at the meeting although I acknowledge that
I was very emotional, and it may had been said.
36. However, I remember reading this in this letter after the meeting and finding it
somewhat insulting.
37. I did not believe that it was a genuine offer for me to consider making an
approach to them after the position. As the preceding paragraph had indicated, they
had said to me verbally they did not believe that I had the suitable skills to fulfil any
other position in the company. This is why I had questioned them as to whether it was
regarding me personally because I had left that meeting feeling quite convinced that I
was not a suitable person to work in the company and it may have had some to do with
my illness.
38. They had attached appropriate vacancies yet had made it clear to me that they
did not believe that I was suitable for those jobs yet indicated in the letter that I should
consider making an approach to them if I thought I had been suitable. I felt worthless
after that meeting and quite vulnerable.
….
40. I note that the letter said that any redundancy would be effective from 5 June
2020.
41. Despite this I received my termination letter confirming that I had in fact been
made redundant the next day on 4 June 2020 whilst exercising my rights to annual
leave confirming that I was in fact redundant before I had even had time to properly
consider whether I could apply for any of those jobs or in fact any other options such
as considering upskilling or retraining.
[22] Noting that:
a) the meeting on 3 June 2020 went for no longer than 20 minutes;
b) the Applicant was distressed in the meeting;
c) the Applicant left the workplace on authorised leave after the meeting;
d) there was no contact made with the Applicant until 4:38 pm the following day
when she was sacked,
it is an incredulous submission for the Respondent to make that it genuinely engaged in
consultation with the Applicant. Nothing about the Respondent’s conduct evidenced genuine
consultation. The Respondent moved with indecent haste.
[23] I reject entirely the evidence of Messrs Minney and Yusnanda that the Sales and
Service Consultant role was offered to the Applicant. It may have been mentioned in the
meeting, but they did everything they could to dissuade the Applicant from considering the
role. They had effectively told her she was not suited for any role. Mr Minney said “We did
talk about the jobs that we had available, but we did say that we did not think Alana had the
[2020] FWC 6475
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skillset for those.”12
[24] The reality is that Messrs Minney and Yusnanda had no desire to redeploy the
Applicant. Nothing about their conduct evidenced a genuine desire to consult with the
Applicant or to find her an alternative position. The invitation to consider vacancies in the
letter provided to the Applicant on 3 June 2020 was a hollow invitation. There was no follow
up with an employee who had been distressed during the meeting and had to leave work. The
next day she was sacked by a proforma letter prepared in advance. The statements about
consultation in the redundancy confirmation letter were pure fiction.
[25] The Respondent did not comply with its consultation obligations under the BFI
Award. Specifically, it did not discuss with Ms Fayad measures to avoid or reduce the
adverse effects of the changes on her.
Would it have been reasonable in all the circumstances to redeploy Ms Fayad?
[26] Whether redeployment of an employee is considered reasonable will depend on the
circumstances that exist at the time of the dismissal.13
[27] In determining whether the redeployment was reasonable a number of matters may be
relevant including:
a) whether there exists a job or a position or other work to which the employee can
be redeployed;14
b) the nature of any available position;
c) the qualifications required to perform the job;
d) the employee’s skills, qualifications and experience; and
e) the location of the job in relation to the employee’s residence and the remuneration
(pay and entitlements) which is offered.15
[28] The evidence is that:
a) on 4 June 2020 (the date of dismissal) there was a vacancy in a Sales and Service
Consultant role (Job ID 50040324),
b) Mr Minney said “she knows the products and could sell the products, so she
potentially could have filled this role.”16
c) Mr Yusnanda said:
i. “in particular the sales role was one role which we thought that she could
be suitable to do.”17
ii. “Alana would have been able to fulfil [Sales and Service Consultant]
roles”.18
12 Transcript PN226.
13 Ulan Coal Mines v Honeysett (2010) 199 IR 363, 370 [26]
14 Technical and Further Education Commission (t/a TAFE NSW) v Pykett (2014) 240 IR 130, [36]
15 Ulan Coal Mines v Honeysett (2010) 199 IR 363 [28]
16 Transcript PN152.
17 Transcript PN298.
18 Transcript PN401.
[2020] FWC 6475
13
d) the Applicant believed she could perform the Sales and Service Consultant role
“with more training and support”.19
[29] Consequently, the evidence establishes that on 4 June 2020 it would have been
reasonable in all the circumstances to redeploy the Applicant into a Sales and Service
Consultant role.
Conclusion about genuine redundancy
[30] For the reasons set out above, the Commission, as presently constituted, is satisfied
that:
a) the Applicant was protected from unfair dismissal,
b) the dismissal was not a case of genuine redundancy within the meaning of s.389 of
the FW Act because:
i. the Respondent failed to consult with the Applicant; and
ii. it would have been reasonable in all the circumstances to redeploy the
Applicant.
[31] The jurisdictional objection raised by the Respondent is dismissed.
Harsh, unjust or unreasonable
[32] Having determined that the termination of Ms Fayad’s employment was not a case of
genuine redundancy I must now consider whether I am satisfied the dismissal was harsh,
unjust or unreasonable.
[33] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465
by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[34] The criteria the Commission must take into account when assessing whether the
dismissal was harsh, unjust or unreasonable are set out at s387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the
19 Transcript PN476.
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281995%29%20185%20CLR%20410
[2020] FWC 6475
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person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[35] Ordinarily I would be under a duty to consider each of these criteria in reaching my
conclusion.20 However, because the dismissal was not a case of genuine redundancy the
consideration of the matters specified in s.387(a), (b) and (c) are neutral, unless in the
circumstances another valid reason is identified. No other valid reason was identified by the
Respondent.
[36] Matters arising from the redundancy (e.g. if relevant, a failure to consult with an
employee) fall within s.387(h).21
[37] Therefore, in relation to the dismissal of the Applicant I am satisfied that:
Valid reason – s.387(a)
(a) The Respondent did not assert that the reason for the dismissal of the Applicant
was related to her capacity or conduct. Accordingly, there cannot have been,
and there was not, a valid reason for the dismissal related to her capacity or
conduct.
(b) In all the circumstances of this case I regard this element of s.387 as a neutral
consideration in respect of whether the dismissal of the Applicant was harsh,
unjust or unreasonable.
Notification of the valid reason and opportunity to respond – s.387(b); (c)
(a) The matters in s.387(b) and (c) of the FW Act deal with whether there was
procedural fairness in respect of a reason for dismissal related to capacity or
conduct.
(b) The dismissal of the Applicant was not related to capacity or conduct.
(c) Consequently, in all the circumstances of this case I regard this element of
20 Sayer v Melsteel [2011] FWAFB 7498
21 UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263
http://www.fwc.gov.au/decisionssigned/html/2011fwafb7498.htm
[2020] FWC 6475
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s.387 as a neutral consideration in respect of whether the dismissal of the
Applicant was harsh, unjust or unreasonable.
Unreasonable refusal by the employer to allow a support person – s.387(d)
a) Where an employee protected from unfair dismissal requests a support person
be present to assist in discussions relating to the dismissal, the employer should
not unreasonably refuse that person being present.
b) In the present matter this is not a relevant consideration.
c) In all the circumstances of this case I regard this element of s.387 as a neutral
consideration in respect of whether the dismissal of the Applicant was harsh,
unjust or unreasonable.
Warnings regarding unsatisfactory performance - s.387(e)
(a) The Respondent did not assert that the dismissal of the Applicant related to her
unsatisfactory performance, so this matter is not relevant to my consideration
as to whether the dismissal was harsh, unjust or unreasonable.
(b) In all the circumstances of this case I regard this element of s.387 as a neutral
consideration in respect of whether the dismissal of the Applicant was harsh,
unjust or unreasonable.
Impact of the size of the Respondent on procedures followed and Absence of dedicated
human resources management specialist/expertise on procedures followed - s.387(f);
(g)
(a) The size of a Respondent’s enterprise may impact on the procedures followed
by it in effecting a dismissal. Further, the presence of dedicated human
resource management or expertise in a Respondent’s enterprise should ensure a
higher standard of management of human resources.
(b) In this matter the Respondent has an in-house human resource function.
However, that function clearly has no influence over the cowboy behaviour of
Mr Minney and Yusnanda.
(c) In all the circumstances of this case I regard this element of s.387 as a neutral
consideration in respect of whether the dismissal of the Applicant was harsh,
unjust or unreasonable.
Any other matters that the FWC considers relevant – s.387(h)
[38] Having considered each of ss.387(a)-(g) of the FW Act, it remains necessary to now
consider subsection 387(h) in respect of the Applicant. Section 387(h) provides the
Commission with a broad scope to consider any other matters it considers relevant.
[39] Once I have considered s.387(h) in combination with each of ss.387(a)- (g) of the FW
Act, I must then decide (in respect of the Applicant) if, in all the circumstances, the
[2020] FWC 6475
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termination of the Applicant’s employment was harsh, unjust or unreasonable. Deciding
whether the termination was ultimately unfair involves the exercise of discretion.
[40] Although s.387 includes matters that the Commission must take into account in
deciding how to exercise its discretion, the discretion conferred is otherwise expressed in
general, unqualified terms. Of course, the discretion conferred must be exercised judicially,
that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further,
the discretion is also confined by the subject matter, legislative context and purpose.
[41] In exercising the discretion, guidance can be drawn from s.381 of the FW Act. It
provides that:
“381 Object of this Part
(1) The object of this Part is:
(a) To establish a framework for dealing with unfair dismissal that
balances:
a. The needs of business (including small business); and
b. The needs of employees; and
(b) To establish procedures for dealing with unfair dismissal that:
a. Are quick, flexible and informal; and
b. Address the needs of employers and employees; and
(c) To provide remedies if a dismissal is found to be unfair, with an
emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure
that a “fair go all round” is accorded to both the employer and employee
concerned.
Note: the expression “fair go all round” was used by Heldon J in in re Loty and
Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
[42] I consider the following matters to be relevant to the determination of whether the
dismissal of Ms Fayad was harsh, unjust or unreasonable:
Matters that support a conclusion that the dismissal was harsh, unjust or unreasonable
a) Ms Fayad was not consulted about the termination of her employment.
b) The Respondent did put into evidence the process and selection criteria for
employees identified for dismissal. It was a document prepared in June 2019.22
That material reflected on Ms Fayad’s performance. None of this was put to Ms
Fayad.23 She was not provided with an opportunity to respond to that material.
That was inherently unfair.
c) The dismissal occurred when the Applicant was on authorised leave.
d) As Mr Yusnanda conceded the Respondent did not follow its own processes.24
e) The Applicant could have been redeployed into a Sales and Service Consultant
role earning $55,00025 per annum.
22 Transcript PN139.
23 Transcript PN142.
24 Transcript PN554-555.
[2020] FWC 6475
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The Commissioner: So if she'd said, 'I'm interested in the sales role', what
would have happened then?
Mr Yunanda: That – more than likely, what would have happened was that we
would have just redeployed her into that role, because my opinion is that she
would have the majority of the skills required.26
Matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable
f) The Applicant was not the only person dismissed by reason of redundancy.
[43] Having considered each of the matters specified in s.387, the Commission, as
presently constituted, is satisfied that, overall, and having regard to the obligation to afford a
“fair go all round” the dismissal of the Applicant was unreasonable (because the Applicant
could have been redeployed) and harsh (because of the impact on her of losing her
employment during a pandemic).
[44] Accordingly, the Commission, as presently constituted, finds Ms Fayad’s dismissal
was unfair within the meaning of the FW Act.
Remedy (if any)
[45] Section 390 of the FW Act sets out the circumstances in which I may make an order
for reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The Commission may make the order only if the person has made an application
under section 394.
(3) The Commission must not order the payment of compensation to the person
unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[46] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as
presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant
to s.382 of the FW Act and the Applicant was dismissed unfairly. An order dismissing the
jurisdictional objection will be issued with this decision.
[47] As a consequence of the above, the Commission is now required to determine whether
to order:
25 Transcript PN433.
26 Transcript PN418
[2020] FWC 6475
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a) the reinstatement of the Applicant or, in circumstances where reinstatement is
inappropriate,
b) compensation if it is satisfied such an order is appropriate in all the circumstances.
Reinstatement
[48] The Applicant seeks compensation as the primary remedy. Regardless of the remedy
sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement
is appropriate before I may consider an order for compensation.
[49] The evidence was that, as at 22 September 2020 there were no vacancies in the
business.27 Further, the Applicant did not seek reinstatement. In the circumstances the
Commission, as presently constituted, is satisfied that an order of reinstatement is
inappropriate.
Compensation
[50] Section 390(3)(b) provides the Commission may only issue an order for compensation
to the Applicant if it is appropriate in all the circumstances.
[51] Noting the unfairness visited upon the Applicant, the Commission, as presently
constituted, is satisfied that an order for compensation is appropriate in all the circumstances
of this case.
[52] As noted by the Full Bench, “[t]he well-established approach to the assessment of
compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the
Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed
Festival Supermarket (Sprigg).28 This approach was articulated in the context of the FW Act
in Bowden v Ottrey Homes Cobram and District Retirement Villages29.”30
[53] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
[54] Section 392 of the FW Act sets out the circumstances that must be taken into
27 Transcript PN578-579.
28 (1998) 88 IR 21.
29 [2013] FWCFB 431.
30 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
[2020] FWC 6475
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consideration when determining an amount of compensation, the effect of any findings of
misconduct on that compensation amount and the upper limit of compensation that may be
ordered:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in
lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would
otherwise order under subsection (1) by an appropriate amount on account of the
misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the
person’s dismissal.
Compensation cap
[2020] FWC 6475
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(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer
during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[55] I will now consider each of the criteria in s.392 of the FW Act.
Remuneration that would have been received: s.392(2)(c)
[56] The Applicant’s remuneration with the Respondent was $65,974 per annum.
[57] I should now determine the period of time the Applicant would have remained
employed by the Respondent, or would have likely remained employed with the Respondent,
had she not been dismissed.
[58] I am satisfied that, if the consultation was executed properly, Ms Fayad would have
been redeployed into the position of Sales and Service Consultant. Noting her 6 years of
service with NobleOak I am further satisfied that she would have been employed in the role of
Sales and Service Consultant for at least 12 months. In that 12 month period the the
Applicant would have earned $55,000.
Remuneration earned: s.392(2)(e)
[59] I should deduct from that amount the 4 weeks’ notice payment paid to the Applicant in
the amount of $5,075.00.
[60] I will not deduct the 10 weeks’ redundancy payment paid to the Applicant.
Redundancy payments are not remuneration. Redundancy payments serve a different
purpose. The purpose of redundancy pay is to compensate an employee for matters such as
the trauma associated with the termination of employment, the loss of non-transferable credits
such as sick leave, the loss of security and seniority, lower job satisfaction and diminished
[2020] FWC 6475
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social status and conditions.31
[61] Deducting the 4 weeks’ notice leaves a compensation balance of $49,925.00.
Other matters: s.392(2)(g)
[62] I find it is not appropriate in the circumstances that a contingency should be applied.
Viability: s.392(2)(a)
[63] I find an order for compensation in the amount proposed will not affect the viability of
the Respondent’s enterprise.
Length of service: section (s.392(2)(b))
[64] I find that the Applicant’s period of service with the Respondent, being 6 years, should
not affect the amount of compensation to be ordered.
Mitigating efforts: s.392(2)(b)
[65] Noting that the Applicant was paid 4 weeks’ notice and 10 weeks’ redundancy, the 14-
week payment meant that between the date of dismissal on 4 June 2020 and 10 September
2020 the Applicant did not suffer any economic loss.
[66] In considering whether the Applicant has taken steps to mitigate the loss suffered as a
result of the dismissal I should take into account whether the Applicant acted reasonably in
the circumstances.32
[67] The Applicant’s evidence was that,
“56. [The dismissal] has also affected my mentally and I have not at current put any
great effort into finding a new job as I have found the experience extremely stressful
and difficult and have focused on moving house first and for most and my health.
57. Then I will put further energy into trying to find another job.”
[68] While I accept that the dismissal came out of the blue and no doubt distressed the
Applicant, by the time of the hearing on 22 September 2020 I am not satisfied that she made
reasonable attempts to mitigate her loss. However, I also note that the dismissal occurred
during a pandemic and unemployment has increased. It is conceived that, had she tried, the
Applicant would have found it difficult to secure a new job. Consequently, I have decided to
reduce the amount of compensation I will order by 10% (i.e. by $4,992.50 to $44,932.50).
Misconduct: s.392(3)
[69] I have not found any misconduct by the Applicant that contributed to the dismissal.
31 The Redundancy Case (2004) 129 IR 155
32 Biviano v Suji Kim Collection PR915963 at [34].
[2020] FWC 6475
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Shock, Distress: s.392(4)
[70] I note that the amount of compensation calculated does not include a component for
shock, humiliation or distress.
Compensation cap: s.392(5)
[71] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the
total amount of remuneration received by the Applicant, or to which the Applicant was
entitled, for any period of employment with the employer during the 26 weeks immediately
before the dismissal, or the high income threshold immediately prior to the dismissal.
[72] The high-income threshold immediately prior to the dismissal was $148,700.
[73] The amount the Applicant would have earned, or to which the Applicant was entitled,
for the 26-week period immediately prior to the dismissal was $32,987.
[74] Because the amount of compensation I propose to order ($44,932.50) exceeds the
compensation cap I must reduce the amount of compensation to equal the compensation cap
of $32,987.00.
Payment by instalments: s.393
[75] The Respondent made no submission about the need to pay by instalments.
Conclusion
[76] The Commission, as presently constituted, is satisfied that the Applicant was protected
from unfair dismissal, that the dismissal was unfair and a remedy of compensation in the
amount of $32,987.00 is appropriate. The compensation must be paid within 21 days.
[77] An order will be issued with this decision.
COMMISSIONER
Appearances:
J Vizzone of Vizzone, Ruggero, Twigg Lawyers for the Applicant.
J Yusnanda for the Respondent.
HE WORK COMMISSION THE SEAL OF
[2020] FWC 6475
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Hearing details:
2020
Sydney (by video):
August 18, September 22.
Printed by authority of the Commonwealth Government Printer
PR725083
