1
Fair Work Act 2009
s.394—Unfair dismissal
Kevin Govender
v
ERGT Australia Pty Ltd
(U2020/11820)
DEPUTY PRESIDENT BINET PERTH, 31 MARCH 2021
Application for an unfair dismissal remedy.
[1] On 1 September 2020, Mr Kevin Govender (Mr Govender) filed an application
(Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair
Work Commission (FWC) alleging he was unfairly dismissed by Wellparks Holdings Pty Ltd
trading as ERGT Australia (ERGT).
[2] On 23 September 2020, Mr Steven Heathcote of APX Law (Mr Heathcote) contacted
the FWC by email advising the FWC that he was acting on behalf of ERGT and
foreshadowing filing a Form F3 – Employer’s Response to unfair dismissal application
(Form F3 Employer Response) on behalf of his client, alleging that Mr Govender’s
dismissal was a case of genuine redundancy (Jurisdictional Objection). In the same
correspondence Mr Heathcote informed the FWC that his client refused to participate in
conciliation with a staff conciliator.
[3] On 30 September 2020 ERGT Australia filed a Form F3 Employer Response.
[4] The Application was allocated to me and listed for a conference to explore the
possibility of a conciliated outcome or to make arrangements for the determination of the
Application.
[5] On 23 October 2020, Mr Heathcote informed Chambers that he was not available on
the listed date of the Conference. On 23 October 2020 Mr Heathcote was asked if ERGT
wished to participate in the Conference. Mr Heathcote informed Chambers that his client was
happy to forgo participating in conciliation.
[6] In light of this, the Application was listed for a Hearing in Perth at 10:00am on Friday
22 January 2020 (Hearing).
Procedural Matters
[7] On 6 November 2020, my Chambers issued directions for the filing of materials in
advance of the Hearing (Directions). The Directions required the parties to file and serve
[2021] FWC 1788 [Note: The Deputy President’s determination is quashed
insofar as it concerns the payment of any compensation to Mr Govender -
refer to Full Bench decision dated 3 August 2021 [2021] FWCFB 4508 and
further Full Bench decision dated 31 August 2021 [2021] FWCFB 5389]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2021FWCfb5389.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4508.htm
[2021] FWC 1788
2
outlines of submissions, signed and dated witness statements, copies of authorities and any
documentary evidence on which they relied.
[8] The Directions required Mr Govender to file his materials with respect to the merits of
the Application no later than 4pm on Friday 13 November 2020 and his materials in response
to the Jurisdictional Objection no later than 4pm on Friday 20 November 2020. The
Directions required ERGT to file their materials with respect to the Jurisdictional Objection
no later than 4pm on Friday 13 November 2020 and its materials in relation to the merits of
the Application no later than 4pm on Friday 20 November 2020.
[9] The Directions also invited parties seeking to be represented by a lawyer or paid agent
at the Hearing to file in the FWC and serve on the other party written submissions no later
than 4pm on Friday 13 November 2020. The Directions specified that any submissions, with
respect to representation, should address the provisions of section 596(2) of the FW Act.
[10] The Directions further outlined that if a party sought to object to a request for
representation, a submission setting out their objections should be made in writing to
Chambers, by no later than 4pm on Friday 20 November 2020.
[11] The Directions also required the parties to file an Agreed Statement of Facts and a
Digital Court Book, by no later than 4pm on Friday 27 November 2020.
[12] On Friday 13 November 2020, in accordance with the Directions, Mr Govender filed
his materials with respect to the merits of the Application.
[13] ERGT’s materials, due on 13 November 2020, were filed late. The witness statement
which was filed was unsigned and stated to be subject to revision. Mr Heathcote indicated that
a finalised and signed statement would be filed by the middle of the following week. The
signed statement was not filed the following week and was only provided in a signed form as
a part of the Digital Court Book, which was eventually filed on Tuesday 1 December 2020.
[14] Later the same day an application by Mr Heathcote for leave to represent ERGT at the
Hearing was also filed late.
[15] On 13 November 2020, Mr Govender wrote to Chambers opposing the granting of
permission to ERGT for leave to be represented and opposing the admission of the ERGT
materials which were filed late. On 18 November 2020, Mr Govender provided expanded
reasons for his opposition to the granting of leave to be represented and requested that the
Application be determined by way of Determinative Conference rather than by way of
Hearing.
[16] On 20 November 2020, in accordance with the Directions, Mr Govender filed his
materials in response to the Jurisdictional Objection.
[17] On 20 November 2020 ERGT filed submissions in relation to the merits of the
Application. It is not clear whether the ERGT submissions were served by Mr Heathcote on
Mr Govender, therefore they were forwarded to Mr Govender by Chambers.
[18] On 23 November 2020, the parties were informed that the Application would be heard
and determined by way of Determinative Conference (Conference).
[2021] FWC 1788
3
[19] On 26 November 2020, the parties were informed by Chambers that ERGT’s
application for leave to be represented had been refused because I was not satisfied that the
requirements in section 596(2) of the FW Act had been satisfied.
[20] Mr Govender provided a draft Statement of Agreed Facts and his portion of the Digital
Court Book to Mr Heathcote on 25 November 2020, in advance of the filing due date of 4pm
on 27 November 2020.
[21] A revised Statement of Agreed Facts was not provided by Mr Heathcote to Mr
Govender until 10am on the day the Statement of Agreed Facts was due to be filed and it
appears no copy of the Digital Court Book was provided before the due date for filing the
Digital Court Book.
[22] The parties were therefore granted an extension until 4pm Monday 30 November 2020
to file both the Statement of Agreed Facts and the Digital Court Book. The Digital Court
Book, incorporating the Statement of Agreed Facts, was eventually filed at 3:58pm on
Tuesday 1 December 2020.
[23] On 16 December 2020, Mr Heathcote wrote to Chambers requesting that I review my
decision to refuse to grant leave to ERGT to be represented at the Conference. On 17
December 2020 Mr Govender was invited to respond to Mr Heathcote’s further submissions
in relation to granting leave to ERGT to be represented at the Conference.
[24] I had intended to review the further submissions of both parties and inform the parties
of the outcome of my deliberations in advance of the Conference. However, on 17 December
2020 Mr Heathcote filed an appeal against, and sought stay orders in relation to, Chambers
email of 26 November 2020.
[25] On 18 December 2020 Mr Govender filed submissions in response to Mr Heathcote’s
further submissions on the granting of leave.
[26] On 22 December 2020 in the decision of [2020] FWC 6947 I provided my reasons for
refusing to grant leave to ERGT to be represented at the Hearing.
[27] On 20 January 2021 in the decision of [2021] FWCFB 268 a Full Bench of the FWC
determined that ERGT’s application for leave to be represented should be refused.
[28] Shortly before the Conference commenced on 22 January 2021 Mr Heathcote handed
my Associate a Form F54 – Notice that lawyer or paid agent has ceased to act for a person
(Form 54) advising that APX Law (of whom Mr Heathcote is the sole Director, sole
shareholder and Principal) had ceased to act for ERGT. Mr Heathcote informed my Associate
that he had been employed by ERGT and that he would seek to appear at the Conference in
the capacity of an employee of ERGT, and therefore he did not require leave to represent
ERGT at the Conference.
[29] Given the timing of the filing of the Form 54 and his purported engagement as an
employee of ERGT coincided so closely with the handing down of the Full Bench’s decision
refusing ERGT leave to be represented I became concerned that the arrangement was intended
to circumvent the decision of the Full Bench and was contrary to the intention of the FW Act.
[2021] FWC 1788
4
I therefore exercised my powers pursuant to section 590 of the FW Act to inform myself, and
as such directed both Mr Heathcote and Mr Millar to give evidence under oath as to the
history and nature of the arrangements between ERGT, Mr Heathcote and APX Law.
[30] Mr Heathcote’s evidence was that on or around November 2020 Mr Heathcote and
ERGT developed a strategy in response to my decision not to grant ERGT leave to be
represented at the Conference. The plan or strategy was that:1
a. ERGT would request that I review my decision to refuse it leave to be
represented; and
b. if that request was unsuccessful then ERGT would appeal my decision to
refuse it leave to be represented.
[31] Mr Heathcote also says that in December ERGT discussed with him what they could
do to avoid the possibility of being denied legal representation, and it was suggested that
ERGT could engage Mr Heathcote directly not as a legal practitioner, but as a human resource
practitioner. 2
[32] Mr Heathcote confirmed that such an arrangement was not entered into at that time.
[33] Mr Heathcote says that after the Full Bench handed down its decision on 20 January
2021 declining ERGT leave to be represented at the Conference he met with Mr James Miller
ERGT’s General Manager – Organisational Performance (Mr Miller) for lunch and Mr
Miller indicated to him that he wished to engage Mr Heathcote to prepare and articulate the
case for ERGT. 3
[34] At 5.30pm on 21 January 2021 Mr Miller wrote to Mr Heathcote offering him casual
employment. Mr Heathcote says that the offer of casual employment was to do ‘this kind of
work into the future’.4
[35] The letter backdates the commencement of employment to December 2020 as follows:
“To reflect the discussions, we had back in December 2020 and the work you have
carried out for us since that time we have agreed to a commencement date of your
employment of December 21st 2020.”
[36] The letter provides that:
“Your employment will be on a casual basis, as required. As a casual employee, there is
no guarantee of ongoing or regular work.”
[37] In an email sent at 12.05am on Friday 22 January 2021 (the day of the Hearing) Mr
Heathcote accepted the offer of casual employment and stated that:
1 Transcript of 22 January 2021 at PN 55
2 Ibid.
3 Ibid.
4 Ibid.
[2021] FWC 1788
5
“I think that we’ve learned that there are problems with the conventional approach to
securing the kind of professional help that you sometimes need, but you don’t need
every day.
…
Your approach has the benefit of obviating the need to seek permission to be
represented. You don’t need permission for ERGT staff to stand as its advocate.
The added benefit is that you don’t have to go through the exercise of applying for
permission. That exercise takes time and, when it’s done externally, and it adds to
cost.”
[38] When giving oral evidence Mr Heathcote revealed that:
“For my part I'm better off financially if my law firm represents ERGT”5
[39] Mr Heathcote acknowledged during the Conference that: 6
“The arrangement - and I appreciate what you've said, Deputy President, about this
having the appearance of a way of getting around a decision that ERGT didn't like. In
one sense that has possibly got some truth to it …”
[40] Mr Miller’s evidence was that ERGT had been a client of APX Law for over ten years.
When asked whether he proposed to engage Mr Heathcote as a casual employee on any
further occasions his evidence was that:
“Well, as I've learned through this process, there are these circumstances in which
you're theoretically not allowed to, or being prevented from being represented by an
external party. And to me it didn't seem to make sense that I couldn't get external
representation of someone who was capable through a law firm or through a
solicitor's office, or whoever is skilled and capable of doing that work, yet I would
have someone inside my business with that skill and capability and they could come
along and represent us anyway.”
[41] Mr Heathcote asserts that ERGT have merely identified a skill set which it lacked
internally and employed an appropriately skilled person. However, the evidence is that ERGT
were acutely aware of the lack of skill set in November and the person whom they wished to
provide that skill set. However, no formal offer of employment was made at that time. Rather
ERGT continued to engage Mr Heathcote’s law firm as it had for the previous decade. It
appears that this arrangement may well have continued, but for the failure of the strategy to
have the decision to refuse to grant leave reversed.
[42] Given that the evidence is that the engagement as a casual employee is less lucrative
for Mr Heathcote, there was certainly no incentive for him to agree to perform the work as a
casual employee when if he had been granted leave he could have done so via his firm on a
more lucrative basis.
5 Ibid PN 82
6 Ibid PN 55
[2021] FWC 1788
6
[43] The issue of an individual who otherwise acts as a barrister or solicitor appearing as an
employee of a party was considered by Higgins J, sitting as President of the Commonwealth
Court of Conciliation and Arbitration, in Waterside Workers Federation v Commonwealth
Steamship Owners’ Association (1914) 8 CAR 53. The relevant facts of the matter were that
Mr Schrader of the law firm Sly and Russell had agreed to be employed by the NSW
Stevedoring Company (a party to the proceedings) for £1 per week on the basis that he would
whenever requested represent the company before any Wages Board or Court of Arbitration
and cross-examine witnesses. Higgins J ruled:
“To fancy that he acts for this client - a valuable client, no doubt - for £52 per year, I
think rather absurd. Mr Schrader’s experience and qualifications would certainly
entitle him to more than £1 per week, and I am convinced that but for his legal skill he
would not be called ‘assistant secretary.’ I treat this as an obvious evasion of the
section, and I shall have, unwillingly, to decline to hear Mr Schrader.”7
[44] A similar issue was dealt with by the High Court in R v Kelly; Ex parte The
Commonwealth Public Service Clerical Association (1955) 92 CLR 10. The statutory
provision under consideration was section 19 of the Public Service Arbitration Act 1920-
1952, which provided: ‘No person or organization shall in any proceeding under this Act be
represented by counsel or solicitor’. The factual issue was whether the general secretary of
the Association, who was also a barrister, was permitted to appear for the Association under
the section. The Court said:
“In Waterside Workers Federation v Commonwealth Steamship Owners' Association
(1914) 8 CAR 53, Higgins J as President of the Arbitration Court construed the words
of prohibition as not excluding from the operation of the earlier or positive part of the
section an officer or employee because he was qualified as a barrister or solicitor.
That means that the words of prohibition referred only to representation by counsel or
solicitor in his professional capacity. At the same time his Honour made it clear that
the relation of the person who is a barrister or solicitor to the party whom he
represented before the court as officer or employee must be in truth and reality that of
an officer or employee and that a colourable employment or appointment would not
do.”8
[45] In Stephen Fitzgerald v Woolworths Limited [2017] FWC 2797 the Full Bench of the
FWC cited these decisions and considered their application to the current statutory
representation regime stating as follows:
“We have earlier referred to the decisions in Waterside Workers Federation v
Commonwealth Steamship Owners’ Association 33 and R v Kelly; Ex parte The
Commonwealth Public Service Clerical Association34, which support the proposition
that contrivances and colourable activities which seek to evade statutory limitations
upon the right of appearance of legal practitioners in industrial tribunals should not
be permitted. As explained in Warrell v Fair Work Australia, the policy considerations
underlying s.596 include that Commission proceedings should be conducted efficiently
with as little formality as possible and in a manner that is fair and just. Those policy
7 Waterside Workers Federation v Commonwealth Steamship Owners’ Association (1914) 8 CAR 53, 60 – 61.
8 R v Kelly; Ex parte Commonwealth Public Service Clerical Association 92 CLR 10, 14.
[2021] FWC 1788
7
considerations may be vitiated if lawyers are permitted effectively to direct or
substantially influence the conduct of proceedings on behalf of a party without
permission having first been obtained from the Commission in accordance with s.596.
The maxim of statutory interpretation that what is prohibited directly cannot be done
indirectly (quando aliquid prohibetur, prohibetur et omne per quod devenitur ad
illud), applied to s.596, would tell against an overly narrow interpretation and
application of the provision which permits its statutory purpose to be defeated or
circumvented. The practice of parties using “shadow lawyers” which has apparently
developed, to the extent that it involves lawyers engaged by a party in a matter
attending and being involved in the conduct of a hearing without actually engaging in
oral advocacy, should not we consider be regarded as falling outside the scope of
operation of s.596.” [footnotes omitted]
[46] The offer of casual employment was not made to Mr Heathcote until after the Full
Bench decision refusing leave was handed down. It appears that until that point Mr Heathcote
prepared the materials which were filed on behalf of ERGT in his capacity as a Director of
APX Law. Indeed, the materials were forward to Chambers from the email of APX Law on an
email with a footer containing the business details of APX Law.
[47] Had the offer of casual employment been made to Mr Heathcote before the decision of
the Full Bench had been handed down, that would be consistent with the submission that it
was a strategy to fill an identified gap. Rather the following evidence suggests that the
engagement of Mr Heathcote occurred in order to circumvent the decision to refuse ERGT
leave:
a. The evidence is that the engagement of Mr Heathcote as an employee of ERGT
on a casual basis was part of a strategy formulated in November 2020 to deal
with the refusal of leave.
b. No formal offer of employment was made until after the decision of the Full
Bench was issued.
c. The offer of employment is only on a casual basis.
d. The offer of casual employment is on a zero hours basis.
e. The offer of employment provides no guarantee of future work.
f. The offer was only accepted in the early hours of the morning of the day of the
Conference.
g. The acceptance of the offer of employment clearly identifies that the purpose
of the employment is to overcome the problem of leave not being granted.
h. The employment is at a lower rate of renumeration than Mr Heathcote would
otherwise receive.
[48] Based on the evidence before me, as at the date of the Conference, it appeared to me
that the appointment of Mr Heathcote as a casual employee on a zero-hour contract the night
[2021] FWC 1788
8
before the Conference to present ERGT’s case at the Conference was an effort to overcome,
work around or subterfuge the limitations on the granting of leave set out in the FW Act.
[49] Section 589 of the FW Act provides that:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be
dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC's power to make decision”
[50] In the exercise of my powers under section 589 of the FW Act, to make decisions as to
how a matter is to be dealt I informed Mr Heathcote that he would not be permitted to be
heard in relation to the matter at the Conference. Mr Heathcote queried whether he would be
permitted to assist Mr Miller. Consistent with the decision in Stephen Fitzgerald v
Woolworths Limited [2017] FWC 2797, I informed Mr Heathcote that he should not sit at the
Bar Table but could remain in the public gallery if he chose to do so. The Conference was
adjourned to allow Mr Miller to gather his thoughts and commenced shortly thereafter.
[51] As neither party were legally represented, at the outset of the Conference I outlined to
the parties the process for presenting their respective cases.
[52] At the Conference Mr Govender represented himself. He gave written and oral
evidence on his own behalf.
[53] At the Conference ERGT was represented by Mr Miller. Mr Miller provided written
and oral evidence on behalf of ERGT.
[54] A Digital Court Book containing the submissions, evidence and authorities relied upon
by the parties was jointly tendered by the parties and marked as the only exhibit.
[55] Final written submissions were filed on behalf of Mr Govender on 19 February 2021.
Final written submissions were filed by ERGT on 5 February 2021.
[56] In reaching my decision, I have considered all the submissions made, and the evidence
tendered by the parties even if not expressly referred to in these reasons for decision.
Background
[57] ERGT is a safety and emergency response training provider employing approximately
200 employees. ERGT has training facilities in Perth, Melbourne and Darwin. ERGT also run
[2021] FWC 1788
9
training centres for Esso Australia and the Australian Defence Force. ERGT administers their
services from offices located in Jandakot, Western Australia.9
[58] Mr Govender is a qualified chartered accountant.10 He commenced employment as an
accountant with ERGT on 29 May 2012 reporting to the Financial Controller. At the time of
his appointment the Financial Controller was Ms Sophie Mickel (Ms Mickel).
[59] Ms Mickel left the business in 2018 and was eventually replaced by Mr Paul Cutler
(Mr Cutler).11
[60] Mr Govender performed duties of the Financial Controller during the period between
the departure of Ms Mickel and the appointment of Mr Cutler.12
[61] Mr Govender says that he approached Mr Miller about applying for the role of
Financial Controller before Mr Cutler was appointed but was denied the opportunity to apply
for or be trained for the role.13
[62] Around five years ago Mr Govender was asked to take responsibility for the payroll
function, and subsequently did. ERGT subsequently employed a payroll officer on a casual
basis around September 2018 and responsibility for the performance of payroll duties were
removed from Mr Govender. Mr Miller says that Mr Cutler informed him that the payroll
duties were removed from Mr Govender because Mr Govender had indicated that he did not
want to perform payroll functions. To the contrary Mr Govender says that the responsibilities
were only ever allocated to him on a temporary basis and were removed as intended. Mr
Cutler did not give evidence at the Conference.
[63] It is not entirely clear when, however the parties agree that at some point in his
employment Mr Govender expressed concern that his rate of pay was not appropriate. ERGT
commissioned an external evaluation of the role. Mr Govender says that he was satisfied with
the outcome of the evaluation and the issue was ‘put to rest’.14
[64] Due to growth in the business the ERGT Board commissioned the accounting firm
McMillans Pty Ltd (McMillans) to conduct an independent review of ERGT’s financial and
reporting arrangements. 15
[65] McMillans completed the review in late 2019 and recommended that ERGT: 16
a. simplify some processes through automation in administrative areas;
b. change the payroll system and accounting system;
9 Digital Court Book, 38 – 40 (‘DCB’).
10 Ibid 26.
11 Ibid 38 – 40.
12 Ibid 11.
13 Ibid 11.
14 Ibid 12.
15 Ibid 38 – 40.
16 Ibid.
[2021] FWC 1788
10
c. introduce analysis reporting tools like Power BI and Futurli; and
d. restructure staffing within the Accounts department.
[66] Mr Miller was responsible for implementing McMillans’ recommendations on behalf
of the Senior Leadership Team. The simplification of processes, changes to software systems
and the introduction of reporting tools were implemented first. 17
[67] Mr Miller then restructured the accounting department by removing the positions of
Finance Controller and Accountant and replacing them with the positions of: 18
a. Finance Manager; and
b. Book Keeper/Finance Co-Ordinator.
[68] Mr Cutler was informed that his role of Finance Controller was to be made redundant
and he was offered a short-term project role.
[69] Mr Miller says he considered whether Mr Govender would be suitable for either of the
new roles and decided that he was not. Mr Miller’s view was that Mr Govender did not have
the experience or ability to perform in a leadership role, was not good at building cross
functional relationships and did not have sufficient analytical skills. 19
[70] Mr Miller says that he knew that Mr Govender was not interested in a bookkeeping
position, which included responsibility for payroll and had a salary $10,000 less than his
current rate of pay. Mr Miller says that he knew this because Mr Govender had previously
complained that he was not being paid enough and indicated that he did not want to take
responsibility for payroll. 20
[71] On Wednesday 12 August 2020 Mr Cutler and Mr Miller met with Mr Govender. At
the meeting Mr Miller informed Mr Govender that, as a result of the review, Mr Govender’s
duties were to be distributed between two new roles, Financial Controller and Book Keeper,
and that Mr Govender’s position as Accountant was being made redundant. 21
[72] Mr Miller says that Mr Govender was shocked and upset and indicated that he wanted
to leave the business immediately without working his notice period. Mr Miller asked Mr
Govender if he would help with the handover and continue working for the duration of his
notice period. Mr Miller allowed Mr Govender to take the rest of the day off to consider this
request. 22
[73] Mr Govender did not attend the workplace on Thursday 13 August 2020.23
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid 25, 38 – 40.
22 Ibid 38 – 40.
23 Ibid 11.
[2021] FWC 1788
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[74] Mr Miller says that by Friday 14 August 2020, he had formed the view that Mr
Govender ’wasn’t in the headspace to continue working his notice period’ and issued a letter
confirming the termination of Mr Miller’s employment would be effective from 14 August
2020.24
[75] Mr Govender submits that his dismissal was unfair and seeks an order for
reinstatement plus continuity of service and backpay.25
Is Mr Govender protected from unfair dismissal?
[76] An order for reinstatement or compensation may only be issued if Mr Govender was
unfairly dismissed and Mr Govender was protected from unfair dismissal at the time of his
dismissal.
[77] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his
or her employer of at least the minimum employment period; and
b. one or more of the following apply:
a modern award covers the person;
an enterprise agreement applies to the person in relation to the
employment;
the sum of the person’s annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the Fair
Work Regulations 2009 (Cth) (FW Regulations), is less than the high
income threshold.
[78] There is no dispute, and I am satisfied, that ERGT is a national system employer with
more than fourteen employees. ERGT is not, therefore, a small business for the purposes of
the FW Act. The minimum employment period if an employer is not a small business is six
months. It is not in dispute, and I find, that Mr Govender was an employee who commenced
employment with ERGT on 29 May 2012 and was dismissed on 14 August 2020.26 There is
no dispute, and I am satisfied, Mr Govender has completed the minimum employment period.
[79] The high income threshold as at the date the Application was filed was $153,600.
There is no dispute, and I am satisfied, that Mr Govender’s annual rate of earnings, and such
other amounts worked out in relation to him in accordance with the FW Regulations was
$83,150.8827 and that this amount is less than the high income threshold.
24 Ibid 38 – 40.
25 Ibid 26.
26 Ibid 11.
27 Ibid 7.
[2021] FWC 1788
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[80] In addition, the Wellparks Holdings Pty Ltd Collective Agreement 2009 (Agreement)
applied to Mr Govender’s employment with ERGT.
[81] Consequently, I am satisfied that Mr Govender was protected from unfair dismissal.
Was the Application made within the period required?
[82] Section 394(2) of the FW Act requires that the Application be made within twenty one
days after the dismissal took effect.
[83] It is not disputed, and I find, that Mr Govender was dismissed from his employment
on 14 August 2020 and made the application on 1 September 2020. I am therefore satisfied
that the Application was made within the period required in section 394(2) of the FW Act.
Was Mr Govender unfairly dismissed?
[84] Section 385 of the FW Act provides that a person has been unfairly dismissed if the
FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code
(SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
Was Mr Govender dismissed?
[85] Section 386(1) of the FW Act provides that a person has been dismissed if the
person’s employment was terminated at the employer’s initiative or the person resigned from
their employment but was forced to do so because of conduct, or a course of conduct, engaged
in by their employer.
[86] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[87] There was no dispute, and I find, that Mr Govender’s employment with ERGT was
terminated at the initiative of ERGT. I am therefore satisfied that Mr Govender has been
dismissed within the meaning of section 385 of the FW Act.
Was Mr Govender’s dismissal consistent with the Small Business Fair Dismissal Code?
[88] Section 388 of the FW Act provides that a person’s dismissal was consistent with the
SBFD Code if:
a. immediately before the time of the dismissal or at the time the person was
given notice of the dismissal (whichever happened first), the person’s
employer was a small business employer; and
[2021] FWC 1788
13
b. the employer complied with the SBFD Code in relation to the dismissal.
[89] It was not in dispute, and I find, that ERGT was not a small business employer within
the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen
employees.
[90] As ERGT is not a small business employer within the meaning of the FW Act, I am
therefore satisfied that the SBFD Code does not apply to Mr Govender’s dismissal.
Was Mr Govender’s dismissal a case of genuine redundancy?
[91] ERGT submits that Mr Govender’s dismissal was a case of genuine redundancy. Mr
Govender disputes this.
[92] Section 389 of the FW Act defines the meaning of ‘genuine redundancy’ as follows:
“389 Meaning of genuine redundancy
(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:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Was Mr Govender’s job no longer required to be performed?
[93] To be satisfied the dismissal was a case of genuine redundancy, the FWC must be
satisfied that ERGT no longer required Mr Govender’s job to be performed by anyone
because of operational changes to ERGT’s business.
[94] Mr Govender submits that the FWC cannot be satisfied that there was no operational
requirement for his job to no longer be performed because the duties which he performed
were and are still required by the business to be performed.
[95] ERGT submits that Mr Govender’s role of Accountant was no longer required to be
performed by anyone for operational reasons. Those operational reasons were that the duties
[2021] FWC 1788
14
of Mr Govender’s position were redistributed between the positions of Book Keeper and
Financial Controller to better suit the needs of the organisation.
[96] The FW Act does not define the term ‘operational requirements’. It is a broad term
that permits consideration of many matters, including the state of the market in which the
business operates and the application of good management to the business.28 Some examples
of changes in operational requirements include a downturn in trade that reduces the number of
employees required and the employer restructuring the business to improve efficiency,
including the redistribution of tasks done by a particular person between several other
employees, thus resulting in the persons job no longer existing.29
[97] A job involves ‘a collection of functions, duties and responsibilities entrusted, as part
of the scheme of the employer's organisation, to a particular employee”’ Where there has been
a reorganisation or redistribution of duties, the question is whether the employee has any
duties left to discharge. If there is no longer any function or duty to be performed by that
person, his or her position becomes redundant.30
[98] An employee may still be genuinely made redundant when there are aspects of the
employee's duties still being performed by other employees.31 The test is whether the previous
job has survived the restructure or downsizing, rather than a question as to whether the duties
have survived in some form.32
[99] The onus is on the employer to prove that, on the balance of probabilities, the
redundancy was due to changes in operational requirements.33
[100] I am satisfied that Mr Govender’s role as Accountant was no longer required by ERGT
to be performed by anyone because:
a. the duties of his position were redistributed between the positions of Book
Keeper and Financial Controller to better suit the needs of the organisation;
and
b. other duties previously performed by Mr Govender were automated or no
longer required.
[101] I am therefore satisfied ERGT no longer required Mr Govender’s role as Accountant
to be performed by anyone because of changes in the operational requirements of ERGT’s
enterprise.
Did ERGT comply with any consultation obligations?
28 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.
29 Explanatory Memorandum, Fair Work Bill 2008, [1548].
30 Jones v Department of Energy and Minerals (1995) 60 IR 304, 308 cited in Ulan Coal Mines Limited v Howarth and
others [2010] FWAFB 3488, [17].
31 Dibb v Commissioner of Taxation [2004] FCAFC 126, [43] – [44].
32 Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674, [27].
33 Priest v HFB Pty Ltd ATF HFB Admin Trust t/a Howe Ford & Boxer [2016] FWC 802, [21].
[2021] FWC 1788
15
[102] At the time of Mr Govender’s dismissal the Agreement applied to his employment
with ERGT.
[103] The Agreement does not contain any obligation for ERGT to consult with affected
employees before making employees redundant.
Was redeployment reasonable in all the circumstances?
[104] For the purposes of section 389(2) of the FW Act the FWC must consider whether
there was a job or a position or other work within the employer’s enterprise (or that of an
associated entity) to which it would have been reasonable in all the circumstances to redeploy
the dismissed employee. There must be an appropriate evidentiary basis for such a finding.34
[105] The word redeployed in section 389(2) of the Act should be given its ordinary and
natural meaning, which is to transfer to another job, task or function.35
[106] ERGT submits that redeployment was not reasonable in the circumstances because
there were no roles for Mr Govender in the restructured business or any related entities. Mr
Govender disputes this.
[107] ERGT says that there were only two roles to which Mr Govender could be redeployed.
Either the newly created Financial Controller position or the role of Book Keeper.
[108] ERGT submitted that it was reasonable for it not to offer Mr Govender the Financial
Controller role because Mr Govender36:
a. was not qualified for that role;
b. lacked the leadership qualities required for that role; and
c. had demonstrated an unwillingness and inability to perform in a senior role.
[109] ERGT further submitted that it was reasonable for it not to offer Mr Govender the
Book Keeper role because Mr Govender:37
a. never expressed an interest in that role;
b. had previously complained he was not paid enough, and he was therefore
unlikely to accept a $10,000 pay cut; and
c. was not willing to perform the duties that were integral to the role.
[110] Mr Miller’s evidence is that prior to the meeting on 12 August 2020 he considered
whether Mr Govender would be suitable for either of these roles and decided that he was not.
Mr Miller’s view was that Mr Govender did not have the experience or ability to perform in a
34 Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714
35 Ibid [25].
36 DCB (n 9), 29.
37 Ibid.
[2021] FWC 1788
16
leadership role.38 Mr Miller also said that Mr Govender had previously indicated a lack of
willingness to perform certain duties and a tendency to procrastinate in performing his duties.
Mr Miller therefore considered Mr Govender was unsuitable for the role of Financial
Controller.39
[111] While ERGT also submitted that Mr Govender was not qualified for the role of
Financial Controller. They did not lead any evidence in this regard and this was not directly
put to Mr Govender in cross examination.
[112] Mr Miller says that he knew that Mr Govender would not be interested in the Book
Keeper role because it included responsibility for payroll and he was aware, from Mr Cutler,
that Mr Govender had previously indicated that he was not interested in performing payroll
duties.40 Mr Miller also says that Mr Govender had previously indicated that his career
aspirations were much higher than his current role.41
[113] Mr Miller says that he also knew that Mr Govender would not be interested in the
book keeping position because the role of Book Keeper attracted a salary of $10,000 less than
Mr Govender’s current rate of pay and Mr Govender had previously complained that he was
not being paid enough in his position as Accountant.42 Mr Miller concedes that he never asked
Mr Govender whether he would accept a pay cut.43
[114] Mr Govender asserts that he has the necessary qualifications, skills and experience to
perform either of the Financial Controller or Bookkeeper roles.44
[115] In relation to the role of Financial Controller, Mr Govender points out that he
performed duties of the Finance Manager around 18 months earlier when Ms Mickel became
unwell. He says that for a period of eight months he supervised the Finance team, while still
meeting month-end and year-end deadlines.45
[116] Mr Govender acknowledges that he had previously expressed concern that his rate of
pay for his role as an Accountant was not appropriate. However, he says that ERGT
commissioned an external evaluation of the role which he was satisfied with and the issue had
been ‘put to rest’. He says that it is therefore untrue to say that he was dissatisfied with his
salary.46 Relevantly he also says that in April 2020 he, as well as other ERGT employees,
agreed to a 15% decrease in salary to assist ERGT weather the impact of the COVID 19
Pandemic.47
[117] While Mr Govender concedes that the role of Book Keeper would have been a
demotion, he says that given the impact of the COVID 19 Pandemic on job opportunities, that
38 Ibid 38 – 40.
39 Transcript of 22 January 2021 at PN 172.
40 DCB (n 9), 38 – 40.
41 Transcript of 22 January 2021 at PN 173.
42 DCB (n 9), 38 – 40.
43 Transcript of 22 January 2021 at PN 296.
44 DCB (n 9), 23.
45 Ibid.
46 Ibid 12.
47 Transcript of 22 January 2021 at PN 289.
[2021] FWC 1788
17
had he been offered the choice between a pay cut and dismissal he would have accepted the
reduction in pay associated with the appointment to the role of Book Keeper rather than face
unemployment.48
[118] Mr Govender rejects the assertion that he would have declined the role of Book
Keeper because its inherent duties included responsibility for payroll. Mr Govender points out
that he was never provided with a job description for the role in order for him to determine
whether or not he was prepared to perform the duties required by the role. He disputes
whether in fact the Book Keeper role would have included any payroll functions given that
ERGT had been separately advertising externally and internally for a payroll officer.49 He also
points out that he performed payroll functions for at least five years and says that he did so on
the understanding that he would do so on a temporary basis. He says that the removal of the
payroll functions from him was consistent with the plans of the business rather than because
he was incapable or unwilling to perform the duties.50
[119] In determining whether redeployment would have been reasonable a number of
matters may be relevant, including51:
a. whether there exists a job or position or other work to which the employee can
be redeployed;
b. the nature of any available position;
c. qualifications required to perform the job;
d. the employee’s skills, qualifications and experience;
e. the location of the job in relation to the employee’s residence; and
f. the remuneration which is offered.
[120] For redployment, the employee should have the skills and competence required to
perform the role to the required standard either immediately or within a reasonable period of
retraining.52
[121] On the evidence before me it is unclear what the precise duties of the new roles were
to be. No job description, job advertisement or contract of employment was tendered for
either role. Limited oral evidence was provided to this effect.
[122] The evidence of Mr Miller appears to suggest that the scope of the positions are still
evolving. For example, he explained that the recommendation by McMillans to create a new
role of Book Keeper was later abandoned in favour of creating two positions entitled Finance
Co-Ordinators. ERGT filled one of those roles with an existing employee who had previously
held the position of Accounts Payable and the other with the individual who was previously
48 DCB (n 9), 13, 23 – 24.
49 Ibid 23; Transcript of 22 January 2021 at PN 369.
50 Transcript of 22 January 2021 at PN 243.
51 [2020] FWC 5432,[36].
52 Ulan Coal 2 at [28] & [34] – I’m not sure what case you’re talking about here
[2021] FWC 1788
18
engaged as a casual payroll officer with a proposal that both would be cross trained so that
they could perform each others duties.53
[123] Given the lack of evidence with respect to the precise duties of the potential
redeployment roles there is limited evidence to support ERGT’s assertion that Mr Govender
did not possess the necessary skills, qualifications or experience to perform the new roles.
[124] There appears little doubt that Mr Govender would have accepted the role of Financial
Controller had it been offered to him. He had previously performed duties of the Finance
Manager and had previously expressed to Mr Miller a desire to progress in his career.
[125] The evidence is that Mr Govender is a chartered accountant. ERGT have not
demonstrated how Mr Govender was unqualified for the role Financial Controller. Mr Miller
says that concerns existed as to Mr Govender’s relationship building skills and his analytical
skills. There is limited objective evidence tendered as to how these deficiencies manifested
themselves in the workplace, there was only Mr Millers assertion that they did. Mr
Govender’s direct supervisor, Mr Cutler, did not give evidence as to Mr Govender’s
performance or his assessment of Mr Govender’s skill set based on his direct experience with
Mr Govender. No performance reviews identifying any deficits in Mr Govender’s skills or
performance were tendered. No job description was provided for the role of Financial
Controller against which Mr Govender’s skill set might be compared.
[126] However, even in the absence of a position description, it appears to be undisputed
that the role of Financial Controller would have been a promotion from Mr Govender’s
existing position and likely to require enhanced analytical and relationship building skills.
Evidence that Mr Miller gave in relation to the unheeded guidance he had given Mr Govender
to proactively improve his standing with stakeholders suggested that Mr Govender might not
have responded to coaching in a timely manner. The limited evidence before me narrowly
supports a finding that redeployment to the role of Financial Controller would not have been
reasonable on the grounds that Mr Govender did not possess the necessary skills and was
some way off acquiring them, even with assistance and training.
[127] There is no evidence to suggest that Mr Govender did not have the necessary skills,
experience and qualifications to perform the Book Keeper role. He was not offered this role
solely because of assumptions made by Mr Miller about Mr Govender’s preferences.54 I am
not satisfied that these assumptions were properly founded.
[128] The evidence suggests that Mr Govender would have been likely to be prepared to
accept a salary reduction to secure his employment given that he accepted a temporary salary
reduction in response to the difficulties the company was facing during the early stages of the
COVID 19 Pandemic downturn. Furthermore, the evidence of Mr Govender that ERGT were
separately advertising for a payroll officer at the time he was made redundant brings into
doubt ERGT’s assertion that the key aspect of the Financial Coordinator’s role would have
been payroll duties.
[129] ERGT submit that Mr Govender should have applied for the role of Book Keeper or
Financial Controller or that he should have disputed that he was unsuitable for the role at the
53 Transcript of 22 January 2021 at PN 149 – PN 166, PN 233.
54 Ibid PN 296.
[2021] FWC 1788
19
meeting held on 12 August 2020. The evidence suggests that the conclusion that he was
considered unsuitable for either role was presented to Mr Govender as a fait accompli at the
meeting held on 12 August 2020, and that in fact he was given no real opportunity to express
an interest in the roles or respond to the reasons for which ERGT considered redeployment
was not reasonable. For example Mr Miller admits that he never asked Mr Govender if he
would accept the salary reduction associated with appointment to the role of Book Keeper he
merely assumed that to be the case. In fact the evidence was that there was no discussion as to
the salary which would attach to either position.
[130] In the absence of genuine consultation with Mr Govender on or before he was
retrenched, Mr Miller had no basis to presume that his views about Mr Govender’s
preferences would remain true in the face of Mr Govender confronting the alternative of the
unemployment queues in the midst of a worldwide pandemic.
[131] As cautioned by Commissioner Ryan in Iryna Margolina v Jenny Craig Weight Loss
Centres Pty Ltd [2011] FWA 5215 at [30]:
“Prudence would suggest to any employer that an employer should not presume to
know how a redundant employee will react to an offer of redeployment to a lower paid
position. Prudence would also suggest to an employer that even if the employer has no
modern award or enterprise agreement obligation to consult an employee about a
redundancy that the employer should consult with the employee. It appears that
Prudence was not employed by the Respondent.”
[132] In the circumstances, I am satisfied that it would have been reasonable for ERGT to
offer Mr Govender redeployment in the role of Book Keeper, notwithstanding the duties of
the role and its lower renumeration. In the prevailing economic environment and in light of
his prior decision to accept a temporary pay cut to retain employment I believe it probable
that Mr Govender would have accepted the appointment.
[133] In light of ERGTs failure to offer Mr Govender the role of Book Keeper, I find that Mr
Govender’s dismissal was not a case of genuine redundancy within the meaning of section
389 of the FW Act.
[134] I am therefore required to consider the merits of the Application.
Was the dismissal harsh, unjust or unreasonable?
[135] Having been satisfied of sections 385(a),(c) -(d) of the FW Act, I must consider
whether I am satisfied the dismissal was harsh, unjust or unreasonable.
[136] 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
[2021] FWC 1788
20
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.”
[137] Section 387 of the FW Act provides that, 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 applicant’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
b. whether the applicant was notified of that reason; and
c. whether the applicant was given an opportunity to respond to any reason
related to the capacity or conduct of the applicant; and
d. any unreasonable refusal by the employer to allow the applicant 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 applicant –
whether the applicant 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.
[138] Normally I would be under a duty to consider each of these criteria in reaching my
conclusion.55 However, being satisfied that dismissal occurred because of a change in the
operational requirements of ERGT, the consideration of the matters specified in sections
387(a), (b) and (c) are neutral, unless in the circumstances another valid reason is identified.
No other valid reason was identified by ERGT.56
[139] However, for completeness I set out my consideration of each below.
Was there a valid reason for Mr Govender’s dismissal related to his capacity or
conduct? (s 387(a))
[140] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded” and should not be ‘capricious, fanciful, spiteful or prejudiced’.57 However,
55 Sayer v Melsteel [2011] FWAFB 7498.
56 UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.
57 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[2021] FWC 1788
21
the FWC will not stand in the shoes of the employer and determine what the FWC would do if
it was in the position of the employer.58
[141] Mr Govender was dismissed because of changes to the operational requirements of
ERGT, not because of his capacity or conduct. I have therefore regarded this as a neutral
factor in my consideration as to whether Mr Govender’s dismissal was harsh, unjust or
unreasonable.
Was Mr Govender notified of the valid reason for his dismissal? (s 387(b))
[142] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,59 and done
so in explicit,60 plain and clear terms.61
[143] In Crozier v Palazzo Corporation Pty Ltd62 a Full Bench of the Australian Industrial
Relations Commission dealing with similar provision of the Workplace Relations FW Act
1996 stated the following:63
“[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to
terminate their employment in order to provide them with an opportunity to respond to
the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.”
[144] Mr Govender was notified on Wednesday 12 August 2020, at a meeting with Mr
Cutler and Mr Miller, that his position was redundant and that he would be dismissed 64 On 14
August 2020 Mr Govender was issued with a letter confirming the termination of his
employment by way of redundancy, effective from 14 August 2020.65
[145] I am satisfied that Mr Govender was notified of the reasons for his dismissal in
explicit, plain and clear terms.
Was Mr Govender given an opportunity to respond to any valid reason related to his
capacity or conduct? (s 387(c))
[146] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. An
58 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
59 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].
60 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
61 Ibid.
62 (2000) 98 IR 137.
63 Ibid 151 [73].
64 DCB (n 9), 25, 38 – 40.
65 Ibid 38 – 40.
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
[2021] FWC 1788
22
opportunity to respond is to be provided before a decision is taken to terminate the
employee’s employment.66
[147] The opportunity to respond does not require formality and this factor is to be applied
in a common sense way to ensure the employee is treated fairly.67 Where the employee is
aware of the precise nature of the employer’s concern about his or her conduct or performance
and has a full opportunity to respond to this concern, this is enough to satisfy the
requirements.68
[148] Mr Govender was not provided with an opportunity to respond to any reason for his
dismissal related to his capacity or conduct at the time of his dismissal, because ERGT
believed that it was a case of genuine redundancy and they were not required to provide such
an opportunity.
[149] I have therefore regarded this as a neutral factor in my consideration as to whether Mr
Govender’s dismissal was harsh, unjust or unreasonable
Did ERGT unreasonably refuse to allow Mr Govender to have a support person present
to assist at discussions relating to the dismissal? (s 387(d))
[150] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, an employer should not unreasonably
refuse that person being present.
[151] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
employee the opportunity to have a support person present when they are considering
dismissing them.”
[152] Mr Govender says that he was not informed of the 12 August 2020 meeting in advance
and that therefore he was denied the opportunity to have a support person present.69
[153] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
66 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [75].
67 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Wilcox CJ in Gibson v Bosmac Pty
Ltd (1995) 60 IR 1, 7.
68 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
69 DCB (n 9) 25.
[2021] FWC 1788
23
employee the opportunity to have a support person present when they are considering
dismissing them.”70
[154] There is no evidence before me that Mr Govender was unreasonably refused the
opportunity to have a support person present to assist in discussions relation to his dismissal.
[155] I therefore find ERGT did not unreasonably refuse to allow Mr Govender to have a
support person present at discussions relating to his dismissal.
Was Mr Govender warned about unsatisfactory performance before his dismissal? (s
387(e))
[156] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant
to the present circumstances and I have therefore regarded this as a neutral factor in my
consideration as to whether Mr Govender’s dismissal was harsh, unjust or unreasonable.
To what degree did ERGT’s size and the absence of dedicated human resource
management specialists or expertise impact on the procedures followed in effecting the
dismissal? (s 387(f) and (g))
[157] Sections 387(f) and (g) of the FW Act look at factors that might have impacted on the
ability of the employer to follow a fair process in effecting a dismissal. Whether the employer
was a small business or a larger employer will be relevant. For example, a small business may
not have the same resources on hand as a larger business which may employ managers or
specialist human resources staff. Where an employer is substantial and has dedicated human
resources personnel and access to legal advice, there will likely be no reason for it not to
follow fair procedures.71
[158] ERGT employs 200 employees in locations in several states across Australia. Mr
Miller, according to his witness statement, has a Bachelor of Business in Human Resource
Management and Industrial Relations from Charles Stuart University. He has been part of the
senior management team of ERGT since 2014.
[159] ERGT is not a small business and did not lack dedicated human resource management
specialists or expertise. According to Mr Miller, ERGT has had an on-going relationship with
APX Law for at least a decade, so presumably ERGT also had access to external legal advice.
[160] Neither the size of ERGT or the absence of human resource expertise provide an
explanation for the deficiencies in the process which was followed in Mr Govender’s
dismissal.
[161] I therefore consider this factor is a neutral consideration in determination whether the
dismissal was harsh, unjust or unreasonable.
What other matters are relevant?
71 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
71 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
[2021] FWC 1788
24
[162] Section 387(h) requires the FWC to take into account any other matters that the FWC
considers relevant. Although section 387 identifies matters that the FWC must take into
account in deciding how to exercise its discretion, the discretion conferred in section 387(h) 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.72
[163] In exercising the discretion, guidance can be drawn from section 381 of the FW Act.
Section 381 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:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) 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 Sheldon J in in re Loty and
Holloway v Australian Workers' Union [1971] AR (NSW) 95”
[164] ERGT submit that I should take into account that Mr Govender was dismissed because
ERGT believed that it was not reasonable to redeploy him. For the reasons outlined earlier in
this decision I am not satisfied that this conclusion was reasonable in the absence of putting
each of those matters directly to Mr Govender and providing him with a genuine opportunity
to respond before determining that it was not reasonable to redeploy him.
[165] Mr Govender submits that I should take into account that:
a. He has the necessary qualifications, skills and experience to perform either the
Finance Manager or Book Keeper roles;
72 [2020] FWC 6475.
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#worker
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#australia
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employer
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#paragraph
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#reinstatement
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employer
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
[2021] FWC 1788
25
b. He performed duties of the Finance Manager for around eight months when Ms
Mickel became unwell and payroll duties for a period of five years;
c. No clear evidence of the precise duties of the new roles was provided to him
before his dismissal or in the proceedings to allow him to demonstrate that
ERGT’s misgivings about his suitability for the role were misplaced;
d. Concerns about his salary had been resolved and he had recently demonstrated
a willingness to accept a salary reduction to preserve his employment; and
e. Given the impact of the COVID-19 pandemic on job opportunities he would
have accepted the reduction in pay and change in duties associated with
appointment to the role of Book Keeper rather than face unemployment.
[166] If Mr Govender had a clear understanding of what the new roles involved and a
genuine opportunity to address ERGT’s concerns about his suitability for redeployment he
may not have convinced ERGT of his suitability for redeployment to the role of Financial
Controller. However, on the balance of the evidence before me, I am satisfied that Mr
Govender did have the necessary qualifications, skills and experience to perform the Book
Keeper role and in the uncertain circumstances which existed at the time of his dismissal
would have accepted redeployment to the Book Keeper role rather than face the
unemployment queue in the midst of a pandemic.
[167] Having considered all of the other matters raised by the parties, I have reached the
view that these matters weigh in favour of a finding that Mr Govender’s dismissal was unfair.
Conclusion
[168] I am satisfied that Mr Govender’s dismissal was not a case of genuine redundancy
within the meaning of section 389 of the FW Act because reasonable opportunities for his
redeployment existed but were not properly explored.
[169] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that, overall, the dismissal of Mr Govender was unreasonable because he could have
been redeployed, and harsh because of the impact of losing his employment in the midst of a
pandemic. Accordingly, I find that Mr Govender’s dismissal was unfair within the meaning of
the FW Act.
Remedy
[170] Having found that Mr Govender was protected from unfair dismissal, and that his
dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should
be granted to him.
[171] Mr Govender has sought the remedy of reinstatement. Firstly, the position in which
Mr Govender was employed immediately before his dismissal no longer exists in that the
duties have been restructured and now reside in roles filled by other employees. There is no
evidence before me that there are any other vacant positions with terms and conditions of
employment that are no less favourable than those which applied to Mr Govender at the time
[2021] FWC 1788
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of his dismissal to which he might be redeployed. I am therefore satisfied that an order for
reinstatement is not appropriate.
[172] Section 390(3)(b) of the FW Act provides that the FWC may only issue an order for
compensation if it is appropriate, in all of the circumstances. A compensation remedy is
designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses
reasonably attributable to the unfair dismissal, within the bounds of the statutory cap on
compensation.73
[173] Having regard to all of the circumstances of the case, including the fact that Mr
Govender has suffered financial loss as a result of his unfair dismissal, I consider that an order
for payment of compensation to him is appropriate. It is necessary therefore for me to assess
the amount of compensation that should be ordered to be paid to Mr Govender. In assessing
compensation, I am required by section 392(2) of the FW Act to take into account all the
circumstances of the case including the specific matters identified in paragraphs (a) to (g) of
section 392(2) of the FW Act.
[174] I will use the established methodology for assessing compensation in unfair dismissal
cases which was set out in Sprigg v Paul Licensed Festival Supermarket,74 which has been
applied and elaborated upon in the context of the current FW Act by Full Benches of the FWC
in a number of cases.75 The approach to calculating compensation in accordance with these
authorities is as follows:
Step 1 - Estimate the remuneration the employee 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.
Step 5 - Apply the legislative cap on compensation.
What remuneration would Mr Govender have received, or would have been likely to
received, if he had not been dismissed (s 392(2)(c))?
[175] Like all calculations of damages or compensation there is an element of speculation in
determining an employee’s anticipated period of employment, because the task involves an
assessment of what would have been likely to happen in the future had the employee not been
dismissed.
73 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015 FWCFB 3512, 17.
74 (1998) 88 IR 21.
75 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762;
Bowden v Ottrey Homes Cobram [2013] FWCFB 431.
[2021] FWC 1788
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[176] The position, I have determined, it would have been reasonable, in all of the
circumstances, for ERGT to have redeployed Mr Govender into was the role of Book Keeper. The
evidence was that the Book Keeper position would be paid an annual salary of $10,000 less than
the role of Accountant which according to ERGT’s Form F3 – Employer Response to Unfair
Dismissal Application76 attracted a salary of $83,150.88 per annum.
[177] The evidence is that a number of employees including Mr Govender agreed to a
temporary salary reduction to assist ERGT deal with the impact of COVID. The period for
which the temporary salary reduction applied or continues to apply is not in evidence before
me. For the purposes of calculating compensation I have presumed that the period to which
Mr Govender agreed for a salary reduction in his role as Accountant he would have agreed
applied to the role of Book Keeper.
[178] The remuneration Mr Govender would have been likely to have received if he had not
been dismissed is therefore $73,150.88 per annum less the temporary salary cut agreed to assist
ERGT deal with the impact of COVID.
[179] I am satisfied, on the balance of probabilities, that if Mr Govender had not been
dismissed on the grounds of redundancy on 14 August 2020, his employment would have
continued with ERGT for another six months. My reasons are as follows:
Mr Govender had been employed by ERGT since 2012.
Notwithstanding evidence that from time to time he viewed job search sites for other
roles, given he had not successfully applied for any other roles in the past, it appears
unlikely that he would have left employment with ERGT in the short term unless he
secured a more senior or more lucrative role as an Accountant elsewhere.
His evidence at the Conference was that despite his best endeavours he has been
unable to secure a role as an Accountant since his dismissal.
The current uncertainty in the business sector and the negative impact of that
uncertainty on the state of the job market is likely to persist for at least six months
from the anniversary of his dismissal.
What remuneration has Mr Govender earned (s392(2)(e)) or is he reasonably likely to
earn since his dismissal? (s 392(2)(f))
[180] Upon termination ERGT paid Mr Govender the equivalent of eighteen weeks’ pay in
the form of 14 weeks severance pay, in accordance with clause 41.3 of the Agreement, and
four weeks pay in lieu of notice, pursuant to clause 40.1 of the Agreement. This payment was
made at the rate Mr Govender was receiving in his position as an Accountant. In monetary
terms, these payments amount to $40,427.03 in total.
[181] I should deduct from the amount of compensation the four weeks’ notice payment paid
to Mr Govender in the amount of $8983.78.
76 DCB (n 9), 7.
[2021] FWC 1788
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[182] I will not deduct the fourteen weeks’ severance payment paid to Mr Govender.
Severance payments are not remuneration. Severance payments serve a different purpose. The
purpose of severance 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 social
status and conditions.77
What is the effect of an order for compensation on the viability of ERGT? (s 392(2)(a))
[183] No submission was made on behalf of ERGT that any particular amount of
compensation would affect the viability of ERGT’s enterprise. My view is that no adjustment
is required on this account.
What impact, if any, should Mr Govender’s length of service have? (s 392(2)(b))
[184] Mr Govender was employed by ERGT for more than eight years. My view is that Mr
Govender’s period of service with ERGT does not justify any adjustment to the amount of
compensation.
What efforts has Mr Govender made to mitigate his loss? (s 392(2)(d))
[185] Noting that Mr Govender was paid four weeks’ notice and fourteen weeks’
redundancy totalling an eighteen week period from the date of his dismissal, Mr Govender did
not suffer any economic loss.
[186] The evidence of Mr Govender is that he has made efforts to obtain alternative
employment following his dismissal on 14 August 2020. Not unsurprisingly in the current
environment, Mr Govender has not yet been able to obtain alternative employment.
Are there any other relevant matters? (s 392(2)(g))
[187] It is necessary to consider whether to discount the remaining amount for
“contingencies”. This step is a means of taking into account the possibility that the occurrence
of contingencies which might have brought some change in his earning capacity or earnings.78
Positive considerations which might have resulted in advancement and increased earnings are
also taken into account.
[188] Any discount for contingencies should only be applied in respect to an anticipated
period of employment that is not actually known, that is a period that is prospective to the
date of the decision. Namely the period between the date of this decision until 14 August
2021.
[189] In all of the circumstances, my view is that it is appropriate to apply a discount to the
amount of compensation for contingencies of 10%.
77 [2020] FWC 6475.
78 Ellawala v Australian Postal Corporation Print S5109, [36].
[2021] FWC 1788
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[190] Save for the matters referred to in this decision, my view is that there are no other
matters which I consider relevant to the task of determining an amount for the purposes of an
order under subsection 392(1) of the FW Act.
Should the amount of compensation be reduced because of misconduct? (s 392(3))
[191] Section 392(3) provides that if the FWC is satisfied that the misconduct of a person
contributed to the employer’s decision to dismiss the person, the FWC must reduce the
amount it would otherwise order by an appropriate amount on account of the misconduct.
[192] Mr Govender did not commit any misconduct, so this factor is not relevant to the
assessment of compensation in this case.
Prohibition on compensating for shock, distress or humiliation (s 392(4))
[193] Section 392(4) provides that a compensation order must not include a component for
shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of
the person’s dismissal. In accordance with section 392(4) of the Act, the amount of
compensation I have calculated does not include a component for shock, humiliation or
distress.
Consideration of the impact of taxation
[194] I have considered the impact of taxation. I will express the compensation sum in a
gross amount with a direction that ERGT withhold taxation in accordance with the law.
Applying the compensation cap (s 392(5))
[195] Pursuant to section 392(5) the amount ordered by the FWC for any order of
compensation must not exceed the lesser of half the amount of the high income threshold
immediately before the dismissal, and the total amount of remuneration received by the
person during the 26 weeks immediately before the dismissal.
[196] The high income threshold immediately before the dismissal was $153,600. Half the
high income threshold is therefore $76,800.
[197] The amount Mr Govender earned in the twenty six week period before his dismissal
was $41,575.44 less the amount he agreed to forego to assist ERGT to deal with the impact of
COVID.
[198] The amount I propose to order is less than the high income threshold and less than the
total amount of renumeration received by Mr Govender during the 26 weeks immediately
before his dismissal.
Should the compensation be paid by way of instalments? (s 393)
[199] No application has been made to date by ERGT for any amount of compensation
awarded to be paid in the form of instalments.
Conclusion with respect to compensation
[2021] FWC 1788
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[200] In my view, the application of the Sprigg formula does not, in this case, yield an
amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is
no basis for me to reassess the assumptions made in reaching my conclusion as to the
appropriate amount of compensation to be awarded to Mr Govender.
Conclusion
[201] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that, overall, the dismissal of Mr Govender was unreasonable because he could have
been redeployed, and harsh because of the impact of losing his employment in the midst of a
pandemic. Accordingly, I find that Mr Govender’s dismissal was unfair within the meaning of
the FW Act.
[202] For the reasons I have given, my view is that a remedy of compensation in favour of
Mr Govender is appropriate in the circumstances of this case.
Further Directions
[203] The parties are directed to provide to Chambers within seven days of the date of this
decision details of the period in relation to which Mr Govender agreed to the temporary
reduction in his salary so that the compensation sum can be calculated.
[204] Upon provision of this information an Order will be issued.
DEPUTY PRESIDENT
Appearances:
K. Govender for the Applicant.
J. Miller for the Respondent
Hearing details:
2021.
Perth.
January 22.
Final written submissions:
Respondent, 5 February 2021.
Applicant, 19 February 2021.
Printed by authority of the Commonwealth Government Printer
PR728301
THE SEAL OF THE FAIT SEAL OF LIA WORK COMMISSION
