DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laura Wrzoskiewicz
v
Easy Payroll Perth Pty Ltd
(U2016/14066)

Termination of employment - genuine redundancy.

[1] This decision concerns an unfair dismissal remedy application made by Ms Laura Wrzoskiewicz (Ms Wrzoskiewicz or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is Easy Payroll Perth Pty Ltd (the Respondent).

[2] The Respondent has lodged a jurisdictional objection to the application on the grounds that the dismissal of Ms Wrzoskiewicz was a case of genuine redundancy.

Evidence and factual findings

[3] At the hearing of this matter evidence for the Applicant was given by Ms Wrzoskiewicz and Ms Elisha Kropp (Ms Kropp) who attended a number of meetings as the Applicant’s support person and a statement was admitted into evidence from Ms Helen Holmes who previously was an employee of the Respondent. For the Respondent evidence was given by Ms Julia Burke (Ms Burke) the Respondent’s Site/Implementation Manager and Mr Dwain Watkins (Mr Watkins) the Respondent’s Managing Director.

[4] Ms Wrzoskiewicz commenced work with the Respondent as a Payroll Officer in 2015.

[5] Ms Burke and Ms Wrzoskiewicz had worked together for a previous employer and Ms Burke had recommended Ms Wrzoskiewicz for this job.

[6] At the time she commenced work in mid-2015 Ms Wrzoskiewicz had one child, approximately six months old, and her husband worked normal daytime office hours. In consideration of the need to provide care for their child it was arranged with Mr Watkins that Ms Wrzoskiewicz would attend for work in the late afternoons but also monitor emails in addition to those hours for approximately 30 minutes a day. Ms Wrzoskiewicz’s evidence was that she would work from home on Wednesday and Friday afternoons.

[7] Ms Wrzoskiewicz’s evidence was that she worked for a minimum of 30 hours per fortnight with some additional hours when required.

[8] Ms Burke’s understanding was that when Ms Wrzoskiewicz was able to work full-time hours she would advise the Respondent. However Ms Burke understood that this would probably be impossible given Ms Wrzoskiewicz’s family and financial situation because to transition to a full-time position would necessitate her husband changing his hours of work or they would need to place the child into day care and neither of these options Ms Burke understood were viable for Ms Wrzoskiewicz’s family.

[9] In May 2016 Ms Burke and Mr Watkins met with Ms Wrzoskiewicz to discuss a change to her role. It was discussed that the new role would have a job title of PEO HR Coordinator. 1 The evidence of Ms Wrzoskiewicz is that through August to October 2016 she was transitioning towards this role and in October had commenced work on a suggested job description for what she then referred to as the PEO HR Manager role.2

[10] In mid-September 2016 the business owner Mr Tognolini advised Ms Wrzoskiewicz she was to receive a pay rise.

[11] On 26 October 2016 Ms Burke emailed Ms Wrzoskiewicz concerning the confirmation of her role change.

[12] Meanwhile around the second half of October 2016 Mr Tognolini and Mr Watkins had met to discuss the operational requirements of the business across its three offices; Melbourne, Perth and Sydney. They considered the recent loss of a couple of substantial Perth-based contracts. They decided they had too many individuals involved in the PEO process which was causing double handling and inefficiencies and that Ms Wrzoskiewicz’s responsibility of providing PEO services, which required her to liaise with staff in Sydney, was resulting in some miscommunication because of the different time zones.

[13] They also concluded that the business needed only one full-time HR Manager position to undertake HR duties across the whole business which would include the HR responsibilities for the PEO business arm. The role would also deal with internal HR issues. 3

[14] They decided that this HR Manager role would be best placed in Sydney to avoid confusion arising because of different time zones and because the HR Manager would need to work closely with the Sydney-based PEO Payroll and Accounts Manager and the Sydney-based finance team.

[15] As a result on 28 October 2016 the Respondent advertised the new full-time position of HR Manager to be based in their Sydney office.

[16] However at this point Mr Tognolini and Mr Watkins had not decided that Ms Wrzoskiewicz’s position would be redundant because she was still required to perform some project-based payroll duties and occasional time critical payroll duties.

[17] On 29 and 30 October 2016 Mr Watkins discussed with Mr Tognolini further ways of increasing efficiency and cutting costs. They reviewed the payroll function and concluded that the full-time Payroll Officers of the Respondent were not operating at full capacity. It was therefore decided a more efficient structure was needed and so the payroll duties of Ms Wrzoskiewicz would be distributed to be performed by the Respondent’s full-time Payroll Officers so they would then be operating at full capacity. As a result of this and as a result of the change to the PEO business and the establishment of the HR Manager role in Sydney they decided that Ms Wrzoskiewicz’s part-time role in Perth was no longer required to be performed by anyone.

[18] Ms Wrzoskiewicz had asked to meet with Ms Burke regarding the confirmation of her role change identified in Ms Burke’s email of 26 October 2016 and a meeting was arranged for 31 October 2016. However during this meeting Ms Burke advised Ms Wrzoskiewicz that the new HR Manager role would be established in Sydney and her position would become redundant. 4

[19] Ms Burke tried to see if Ms Wrzoskiewicz was interested in performing full-time hours and if she would be open to applying for the role in Sydney. Ms Burke’s evidence, which was not challenged in cross-examination, was that Ms Wrzoskiewicz told her that this was impossible because her husband would have to change his working hours which was unlikely and not something she would be open to. Ms Wrzoskiewicz then enquired as to whether the newly created HR Manager role could be performed in Perth. Ms Burke advised that this was a potential option but would be unlikely because the majority of work was required to be done in Sydney. Ms Burke’s notes from that meeting record she gave Ms Wrzoskiewicz the option to apply for the full-time position in Sydney but Ms Wrzoskiewicz said it is not an option. 5

[20] Ms Wrzoskiewicz told Ms Burke she did not think this was a fair process and did not think this meeting should be considered as part of a process of consultation.

[21] Ms Burke suggested to Ms Wrzoskiewicz she could ask for the new HR Manager role to be performed in Perth but did stress that it was a full-time role.

[22] That evening Ms Burke emailed Ms Wrzoskiewicz regarding their discussions. The email confirms there had been a change in the Respondent’s operational requirements and that it had been decided to introduce a full-time role in Sydney to manage PEO. The email advises that this change meant the Respondent no longer required Ms Wrzoskiewicz’s job to be performed in Perth which meant her position was redundant and consequently her employment with the Respondent was likely to end.

[23] The email continued on to say the Respondent would like to meet with Ms Wrzoskiewicz on 4 November 2016 to discuss this change and any measures that might avoid or more mitigate the effect of the operational change on her and anything she may want to raise in relation to the change.

[24] The email invited Ms Wrzoskiewicz to bring a support person if she wished.

[25] On 4 November 2016 Ms Wrzoskiewicz, accompanied by Ms Kropp, met with Mr Watkins. Mr Watkins confirmed that the meeting was to consult with her about her job being redundant. Mr Watkins explained that a full-time HR Manager position was being created in Sydney and that Ms Wrzoskiewicz was capable of filling the role. Ms Wrzoskiewicz was advised that there were extra duties allocated to this position in addition to her current duties. Mr Watkins explained why the position would be in Sydney and Ms Wrzoskiewicz questioned whether the position could be located in Perth.

[26] Ms Wrzoskiewicz asked if she would be offered the role in Sydney and whether she would be provided with up-skilling if required for any additional tasking.

[27] Mr Watkins evidence is that he explained to Ms Wrzoskiewicz that they had looked to see if there were other part-time positions they could offer her but there were not any at that time. He confirmed the decision had nothing to do with her performance. Mr Watkins unchallenged evidence is that he said to Ms Wrzoskiewicz he knew she did not want to work full-time hours but asked if she would be open at all to applying for the full-time HR Manager position in Sydney and that she would be considered as a high priority and she would be a valuable employee as she has the skills. His evidence was Ms Wrzoskiewicz replied “No I can’t. I prefer to stay in my current role and in Perth. Can’t you have that role performed in Perth?”

[28] In response Mr Watkins said it could not be performed in Perth because the role needs to work closely with the finance team located in Sydney and that it just does not work in Perth.

[29] Ms Wrzoskiewicz asked whether all of her current duties are going to be formed by this new full-time Sydney role and Mr Watkins explained that her HR duties would be picked up by the Sydney role but this role would also be responsible for all HR duties and other requirements based on Sydney operations. He explained that Ms Wrzoskiewicz’s payroll duties would be picked up by other full-time Payroll Officers.

[30] Ms Wrzoskiewicz’s evidence was that she asked for more details about the Sydney position so that she could make a decision whether to apply. 6

[31] As the meeting continued Ms Wrzoskiewicz asked if she could be retained as a casual employee and then stated that she would not turn down any offer of employment and would adjust her working hours and schedule if needed. Ms Wrzoskiewicz queried whether there was a role in Perth for her to cover a future maternity leave absence. She queried why one of the other new Payroll Officers who were on probation were not being made redundant rather than her. Ms Wrzoskiewicz advised other organisations often applied ‘the last on first out’ policy in these situations.

[32] Mr Watkins agreed to look at some of these matters and advise her in due course of the Respondent’s final decision.

[33] Following this a second consultation meeting was held on 9 November 2016 on this occasion also attended by Ms Burke.

[34] Ms Wrzoskiewicz asked about the qualifications for the HR Manager role in Sydney and Mr Watkins stated that a Certificate 3 would be suitable whilst Ms Burke stated she would expect a degree qualification.

[35] Ms Wrzoskiewicz asked for an extended notice period to allow her to do a handover to the new person hired for the HR Manager role but this was declined by Mr Watkins.

[36] Mr Watkins advised that there was not a casual position available and no additional project work would be provided. He advised that there had not been an application for maternity leave as yet so retaining Ms Wrzoskiewicz to backfill this possible vacancy was not feasible and in any event this person’s duties would be absorbed by other staff. Ms Wrzoskiewicz was advised that they had considered alternative redeployment options including in associated entities of the Respondent however none were available.

[37] The unchallenged evidence of both Mr Watkins and Ms Burke is that they explained to Ms Wrzoskiewicz that as she had made it clear that she wanted to remain in a part-time position in Perth they would be proceeding on the basis that she would not be taking up the opportunity to apply for the new full-time HR Manager position in Sydney. It was reiterated to her that it was not suitable for this position to be based in Perth.

[38] Ms Wrzoskiewicz was advised that consequently she was terminated immediately due to her position being redundant.

[39] According to Ms Wrzoskiewicz’s evidence she then explained that for the termination to be a ‘genuine redundancy’ she should be offered the role in Sydney. 7

[40] Ms Wrzoskiewicz did not at this meeting indicate to Mr Watkins and Ms Burke that she would apply for the Sydney HR Manager role.

[41] Ms Wrzoskiewicz has not applied for the Sydney HR Manager role.

[42] Since Ms Wrzoskiewicz’s dismissal her part-time position in Perth has not been required to be performed by anyone.

Submissions

[43] The Applicant submits that the Respondent has not complied with section 389 of the Act and so her dismissal was not a case of genuine redundancy.

[44] The Applicant submits that she was employed as a Payroll Officer but was in transition to the role of PEO HR Coordinator at the time of dismissal.

[45] She submits that 90% of the role of Payroll Officer is being completed by other employees of the Respondent and over 95% of the PEO HR Coordinator role is being performed by one another employee.

[46] Ms Wrzoskiewicz disputes that there was an operational review conducted.

[47] Ms Wrzoskiewicz submits that there were no other terminations as a result of the alleged restructure.

[48] Ms Wrzoskiewicz submits that her employment was covered by the Clerks—Private Sector Award 2010 (the Award) [MA000002]. She says there was only one consultation meeting on 4 November 2016 at which she made suggestions as to how to mitigate the negative impact upon herself and there is no evidence that the Respondent gave any consideration to those suggestions.

[49] Ms Wrzoskiewicz submits that at the meetings on 4 and 9 November she stated she would consider the HR Manager role in Sydney if it were offered to her but she was not offered this role. She was only ever offered the opportunity to apply for this role.

[50] Ms Wrzoskiewicz acknowledges that the Respondent advised that the HR Manager role would require a Certificate 3 or more as a qualification. Ms Wrzoskiewicz does not have such a qualification but holds a Diploma in Management and a Diploma in Business Administration both of which contained HR units. Ms Wrzoskiewicz submits she would have been willing to retrain if necessary.

[51] Ms Wrzoskiewicz submits that there were at least five vacant positions after she was terminated.

[52] Ms Wrzoskiewicz says casual employees continued after she was dismissed and an associated entity, Archers Solutions, hired a casual employee in October 2016 and there was an employee of the Respondent proceeding on maternity leave that she could have stayed on to cover for.

[53] Consequently the Applicant submits the Respondent could reasonably have redeployed her but did not and so her dismissal was not a genuine redundancy.

[54] In the circumstances the dismissal was harsh unjust and unreasonable and so Ms Wrzoskiewicz says she was unfairly dismissed.

[55] The Respondent submits that Ms Wrzoskiewicz is not able to make an application for an unfair dismissal remedy because her dismissal was a case of genuine redundancy within the meaning of section 389 of the Act.

[56] The Respondent submits that it no longer required Ms Wrzoskiewicz’s job to be performed by anyone because of changes in its operational requirements. Having come to this decision the Respondent complied with the consultation obligations under the Award and as part of those consultations considered whether it was reasonable in the circumstances to redeployed Ms Wrzoskiewicz within the Respondent’s enterprise or any of its associated entities and concluded this was not reasonable.

[57] Even if there was jurisdiction for Ms Wrzoskiewicz to make this application then the Respondent submits the dismissal was not harsh, unjust or unreasonable.

The legislation

[58] Section 389 of the Act is set out below.

“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.”

The Award

[59] Clause 8.1 of the Award is set out below.

“8.1 Consultation regarding major workplace change

(a) Employer to notify

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

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

Consideration

Genuine redundancy?

Section 389(1) (a)

[60] A job comprises a number of components. A job has duties to be completed but a particular job may require those duties to be undertaken on a full-time or part-time basis and the job will usually require that those duties are undertaken at a particular location. It is quite common for a job to become redundant because an employer decides that the some or all of the duties that job involved will in future be done by one or more other employees and/or those duties will be undertaken at a different location.

[61] At the time that Ms Wrzoskiewicz was dismissed her job involved a mixture of Payroll Officer duties and PEO HR Coordinator duties. Ms Wrzoskiewicz’s job involved those duties being undertaken on a part-time basis both at the Respondent’s office in Perth and at Ms Wrzoskiewicz’s home.

[62] I am satisfied that the Payroll Officer duties Ms Wrzoskiewicz was undertaking have been distributed to be carried out by other full-time Payroll Officers and that the PEO HR Coordinator duties she was undertaking will be part of the duties of the new full-time HR Manager job based in the Respondent’s Sydney office.

[63] Consequently I am satisfied that the Respondent no longer required Ms Wrzoskiewicz’s job to be performed by anyone.

[64] The evidence is that the Respondent lost a couple of substantial Perth-based contracts and Mr Watkins and Mr Toglinini consequently reviewed the Respondent’s operations. They decided that they would change the staffing arrangements to create efficiencies including creating a new full-time HR Manager role to be based in Sydney and doing away with Ms Wrzoskiewicz’s position.

[65] The fact that Ms Burke who reports to Mr Watkins was not aware that this was occurring at the time she was dealing with Ms Wrzoskiewicz immediately before the end of October 2016 does not alter the fact that the Respondent was considering changes to its operational requirements. It is not uncommon for one level of management to be unaware of what a higher level of management is considering at a particular point in time.

[66] Consequently I am satisfied that changes in the operational requirements of the Respondent was the reason the Respondent no longer required Ms Wrzoskiewicz’s job to be performed by anyone.

Section 389(1) (b)

[67] The parties have proceeded on the basis that Ms Wrzoskiewicz’s employment was subject to the Award. No submissions have been put to the Commission on this and there is little details as to Ms Wrzoskiewicz’s particular duties are however on the face of it I accept it is likely that the Award did apply.

[68] The Award’s consultation provisions are outlined in [59] above.

[69] In this case the Respondent having made a definite decision to change it staffing arrangements, which was likely to have a significant effect on Ms Wrzoskiewicz, did notify her of this. This occurred in the first discussion with Ms Burke on 31 October 2016. There was no requirement for the employer to provide Ms Wrzoskiewicz with the opportunity to have a support person present at this meeting. Those discussions commenced as early as practicable after a definite decision had been made to change the staffing arrangements. Following this the Respondent provided in writing to Ms Wrzoskiewicz relevant information regarding the proposed changes and the likely effect on her.

[70] At this meeting it was discussed with Ms Wrzoskiewicz the changes proposed and the effect on her which would be that her job would be redundant.

[71] In the meeting on 4 November 2016 these matters were discussed again and Ms Wrzoskiewicz raised a number of measures that might avert or mitigate the adverse effect of the proposed changes on her. Following this meeting the Respondent considered those suggestions from Ms Wrzoskiewicz and advised her regarding these when they met again on 9 November 2016.

[72] The evidence demonstrates that the Respondent has complied with its obligations under the Award to consult with Ms Wrzoskiewicz about her job becoming redundant.

[73] Considering the requirements of section 389(1) of the Act I am satisfied that Ms Wrzoskiewicz’s dismissal was a case of genuine redundancy.

Section 389(2)

[74] Section 389(2) of the Act provides an exception that where the redeployment of an employee whose job is no longer required to be performed by anyone would have been reasonable then the dismissal is not a case of genuine redundancy.

[75] The newly created full-time HR Manager position in Sydney was vacant at the time Ms Wrzoskiewicz was dismissed. The Respondent did not redeploy Ms Wrzoskiewicz to this vacant full-time HR manager job in Sydney.

[76] Ms Wrzoskiewicz, during her discussions with Ms Burke and Mr Watkins on 9 November 2016 but after she was told she was terminated specifically requested that she be offered this job and said it could not be a ‘genuine redundancy’ otherwise. The Respondent did not offer Ms Wrzoskiewicz this job but had encouraged her on a number of occasions to apply for it. During the 4 November meeting Ms Wrzoskiewicz says she was asking about the Sydney job so she could make a decision on whether to apply. She never did apply for this job.

[77] The evidence is that one of Ms Wrzoskiewicz’s responses to the creation of the full-time HR Manager position in Sydney was to ask whether it could be a job that was based in Perth and it was explained to her why this was not suitable for the business.

[78] Ms Wrzoskiewicz never said to Ms Burke or Mr Watkins that she was willing to relocate to Sydney and work there full-time. Indeed the evidence is that Ms Wrzoskiewicz told Ms Burke on 31 October 2016 and also told Mr Watkins on 4 November 2016 that a move to a full-time position in Sydney was not possible for her and that she could not do this.

[79] Considered in all the circumstances, Ms Wrzoskiewicz statement that she would not turn down any offer of employment, was a reference by her to other alternative employment opportunities in Perth that she had asked the Respondent to consider. It would not be correct to interpret this single statement by Ms Wrzoskiewicz as meaning she was willing to relocate to Sydney and work as the full-time HR Manager if the Respondent offered her this position when she had twice expressly told the Respondent’s managers she could not do this.

[80] Given what Ms Wrzoskiewicz had told the Respondent about her inability to move to a full-time position in Sydney the full-time HR Manager vacancy in Sydney was not a suitable position for Ms Wrzoskiewicz.

[81] Consequently it would not have been reasonable in the circumstances for the Respondent to redeploy Ms Wrzoskiewicz to the full-time HR Manager position in Sydney.

[82] Finally the evidence demonstrates that there were no casual positions, nor was there a position available involving maternity leave cover, nor any other positions to which the Applicant could have been redeployed within the Respondent’s enterprise or any associated entity.

[83] Consequently the exception where redeployment is reasonable, provided in section 389(2) of the Act, is not applicable in this case.

Conclusion

[84] The Respondent’s dismissal of Ms Wrzoskiewicz was a case of genuine redundancy as provided for in section 389 of the Act. Consequently by virtue of section 385(d) of the Act Ms Wrzoskiewicz cannot have been unfairly dismissed.

[85] Ms Wrzoskiewicz’s application will now be dismissed and an order [PR592654] to that effect will be issued.

COMMISSIONER

Appearances:

L. Wrzoskiewicz on her own behalf.

R. Byun of Holding Redlich for the Respondent.

Hearing details:

2017.

Perth and Sydney (video hearing)

February 21.

 1   Exhibit A1 at paragraph 24.

 2   Ibid., at paragraph 36.

 3   Transcript at PN143.

 4   Exhibit A1 at paragraph 49.

 5   Ibid., at paragraph 14 and Annexure C at the last line.

 6   Ibid., at paragraph 60.

 7   Exhibit A1 at paragraphs 84 and 85.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR592653>