Allana Harris v Yamatji Marlpa Aboriginal Corporation [2024] FWC 263

1 Fair Work Act 2009 s.394—Unfair dismissal Allana Harris v Yamatji Marlpa Aboriginal Corporation (U2023/8852) COMMISSIONER LIM PERTH, 21 FEBRUARY 2024 Application for an unfair dismissal remedy 1. Introduction [1] On 14 September 2023, Ms Allana Harris applied to the Fair Work Commission alleging that she was unfairly dismissed from her employment with Yamatji Marlpa Aboriginal Corporation (YMAC or Respondent). [2] Ms Harris’s employment ended by way of redundancy on 28 August 2023. Ms Harris contends that her termination was not a genuine redundancy pursuant to s 389 of the Fair Work Act 2009 (Cth) (Act) that her dismissal was harsh, unjust or unreasonable. [3] There is no contest, and I find, that: (a) Ms Harris had completed the minimum employment period and was covered by the Yamatji Marlpa Aboriginal Corporation Enterprise Agreement 2018 (YMAC Agreement). Ms Harris was thus protected from unfair dismissal pursuant to s 382 of the Act; (b) Ms Harris’s application was made within the time prescribed in s 394(2); and (c) The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply. [4] I conducted a case management conference on 17 November 2023. Directions for the filing of material were subsequently issued. A hearing was conducted to determine Ms Harris’s application on 20 December 2023. Pursuant to s 596 of the Act, permission was granted for Mr Andrew Wright of WK Lawyers to represent Ms Harris and Mr Tim Lyons of Gibson Lyon Lawyers to represent YMAC. [5] Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. The court book was tendered into [2024] FWC 263 DECISION -- 1 of 29 -- [2024] FWC 263 2 evidence with the consent of both parties. References to evidence are by way of the relevant page number in the court book. [6] Having considered the relevant evidence and submissions of the parties, I find that Ms Harris’s termination was not a genuine redundancy within the definition of s 389 of the Act. I also find that her dismissal was harsh, unjust or unreasonable. However, I have not found it appropriate to order reinstatement or compensation. [7] My detailed reasons follow. 2. Evidence [8] The parties called the following witnesses to give evidence: (a) Allana Harris: Ms Harris has a degree in human resources and management from Edith Cowan University. Ms Harris also has a history of working in various human resources roles.1 I found Ms Harris to be a generally honest witness, though she was evasive at times during cross-examination. I have taken this into consideration when assessing competing evidence. (b) Valere Kolker: Mr Kolker is the Business Information Technology (BITS) Manager for YMAC, a position he has held since early 2022. Mr Kolker’s role involves managing the Information (IT) team, the Information Management (IM) team and the Business Support Officers (BSO) Team. Ms Harris was in the BSO Team and reported directly to Mr Kolker. I found that Mr Kolker was generally honest in his evidence, though like Ms Harris he was evasive at times during cross-examination. I have taken this into consideration when assessing competing evidence. (c) Nicholas Kimber: Mr Kimber is the YMAC Chief Financial Officer, a position he has held since 3 February 2011.2 I found Mr Kimber to be an open and credible witness. (d) Elspeth Gonzalez-Skuja: Ms Gonzalez-Skuja is the YMAC People and Development Specialist. She has held this position since May 2020.3 I found Ms Gonzalez-Skuja to be an honest and credible witness. [9] YMAC also tendered an unchallenged witness statement from Georgia Villaflor. Ms Villaflor is the People and Development Officer for YMAC. She has held this role since January 2022.4 2.1 Ms Harris’s employment with YMAC [10] YMAC is a Native Title Representative Body for the Yamatji and Pilbara regions in Western Australia.5 It is funded through multiple income streams, but primarily through the Commonwealth Government’s National Indigenous Australians Agency.6 Ms Harris first commenced employment with YMAC on 14 September 2022 on a casual basis.7 -- 2 of 29 -- [2024] FWC 263 3 [11] On 27 March 2023, Ms Harris accepted a full-time position with YMAC as a Business Services Coordinator (BS Coordinator).8 Ms Harris’s employment contract relevantly provided that: • The role was for a fixed term contract ending on 26 March 2024. • Her direct supervisor would be the BITS Supervisor and her normal place of work would be Perth. • The terms and conditions of her employment would be covered by the YMAC Agreement. 2.2 Harassment claims [12] In April 2023, Ms Harris raised concerns regarding harassment from Mr Kolker and another co-worker, John Tilman. [13] Ms Harris provided very little detail about the substance of her complaint in her evidence. In her Form F2, it states, “In April I put in a harassment claim against my manager with which I wanted to remain anonymous. I was named in the claim and then asked to cancel it by my manager”.9 Ms Harris did not expand on this in her witness statements or in her evidence at the hearing. [14] Ms Villafor’s uncontested evidence is that: (a) Ms Harris approached her in April 2023 regarding inappropriate comments from Mr Kolker. (b) She recalls one of the comments Ms Harris discussed was around Mr Kolker commenting on the cut of her shirt. (c) She asked Ms Harris if she wished to make a formal statement regarding Mr Kolker’s comments. Ms Harris said that she did not want to “rock the boat”. (d) She encouraged Ms Harris to talk to Ms Gonzalez-Skuja about her concerns. [15] Ms Gonzalez-Skuja’s evidence is that: 10 (a) On 18 April 2023, Ms Harris approached her to raise concerns about Mr Kolker and another co-worker, John Tilman. (b) She asked Ms Harris to follow up their discussion with an email to put her concerns in writing. (c) She then had further discussions with Ms over the next two weeks where Ms Harris agreed for Ms Gonzalez-Skuja to raise the concerns with Mr Kolker and Mr Tilman. -- 3 of 29 -- [2024] FWC 263 4 [16] On 2 May 2023, Mr Kimber and Ms Gonzalez-Skuja met with Mr Tilman. Ms Gonzalez- Skuja’s account is that it was put to Mr Tilman that on a phone call with Ms Harris, he had said words to the effect of, “I’m jealous of your monitors because they spend more time with you than I do.” Mr Tilman denied the allegation.11 [17] On 2 May 2023, Mr Kimber and Ms Gonzalez-Skuja also met with Mr Kolker. Ms Gonzalez-Skuja’s account is that during this meeting, it was put to Mr Kolker that he had made comments about Ms Harris’s appearance, such as, “[you] don’t smile enough”, “[you] look washed out or too skinny”, and “[you] look more feminine with [your] hair down”. Mr Kolker responded that he had not realised that these sorts of comments were inappropriate, and he would cease making them.12 [18] Ms Gonzalez-Skuja informed Ms Harris about the meeting and that Mr Kolker would change his behaviour. [19] After this meeting, Mr Kolker and Ms Harris arranged a meeting to discuss her concerns. Mr Kolker’s account of this meeting is that:13 (a) Prior to the meeting, he offered Ms Harris the option of having a support person. Ms Harris declined to bring a support person. (b) He gave a sincere apology to Ms Harris, acknowledging that his comments, though unintentional, might have caused discomfort. He assured Ms Harris that future interactions would be strictly professional. (c) He assured Ms Harris that if she felt uncomfortable working together, they could include others in their meetings. Ms Harris stated that she was comfortable continuing their work collaboration. (d) They discussed Ms Harris’s complaint against Mr Tilman and a potential arrangement where they would work in the office on opposite days. They also discussed specific BSO-related topics. [20] Mr Kolker’s evidence is that after this meeting, there were no further issues between him and Ms Harris and they had a smooth working relationship.14 Ms Harris confirmed this during her cross-examination.15 [21] Ms Gonzalez-Skuja’s evidence is that she had two casual follow-up conversations with Ms Harris after this to check if there were any further problems with Mr Kolker. Ms Harris confirmed that everything was fine.16 [22] Ms Gonzalez-Skuja’s further evidence is that on 12 May 2023, Ms Harris, Mr Kolker and Mr Tilman met on MS Teams to discuss mechanisms so that they could feel safe at work. Ms Gonzalez-Skuja attended as a support person for Ms Harris. The parties agreed to an arrangement where Ms Harris would work in the Perth office on Mondays, Wednesday and Thursdays, while Mr Tilman would work in the office on Tuesdays and Fridays. Ms Harris and Mr Tilman would work from home when the other was in the office.17 -- 4 of 29 -- [2024] FWC 263 5 [23] The evidence of Ms Gonzalez-Skuja and Mr Kolker as outlined above was not challenged during their cross-examination. I accept their evidence as to their involvement in how Ms Harris’s complaint was handled. [24] Ms Villafor’s uncontested evidence is that after these meetings were completed, Ms Harris spoke with her to let her know the outcome. Ms Harris told Ms Villafor that it had gone well and she felt confident moving forward with Mr Kolker as her manager.18 [25] In cross-examination, Ms Harris gave evidence that she had told someone about further issues with Mr Kolker but refused to provide any details.19 On this basis, I cannot accept Ms Harris’s evidence on this point. 2.3 Road accident [26] On 12 July 2023, Ms Harris witnessed and was a first responder to a serious road accident. This incident understandably affected her mental health. [27] Ms Harris is aggrieved at how YMAC supported her as she processed the traumatic incident. Specifically, at how she was directed to take personal leave and denied her permission to work from home. YMAC contests that it was unsupportive to her during this period. [28] During cross-examination, Ms Harris clarified that she does not believe that YMAC targeted her for redundancy due to her medical issues that arose from the road accident on 12 July 2023.20 This point was also not advanced in Ms Harris’s submissions. 2.4 Restructure [29] Mr Kimber’s evidence is that he was responsible for commencing a restructure process following discussions and correspondence with other management staff (including the CEO) in February 2023 during YMAC’s annual business planning meeting and following his performance appraisal with the CEO.21 This led Mr Kimber to consider the need to seek proposals for restructures from both Mr Kolker and Edina Borross of their respective departments. Ms Boross is the Project Manager – Governance for YMAC. 22 [30] During cross-examination, Mr Kimber gave evidence that he had several discussions with Mr Kolker regarding a potential restructure of the BSO unit between February to May 2023.23 Mr Kimber also gave evidence that to the best of his recollection, he did not know about the issues between Mr Kolker and Ms Harris before these conversations started in February. He did become aware of the issues between Ms Harris and Mr Kolker around March or April 2023. I accept Mr Kimber’s evidence on this point.24 [31] In Mr Kolker’s cross-examination he corroborated that he and Mr Kimber had discussions regarding the structure of his department prior to 31 May 2023.25 Mr Kolker also gave evidence that in the last two years, there have been three restructures of the BITS department.26 -- 5 of 29 -- [2024] FWC 263 6 [32] Mr Kimber also gave evidence that the purpose of the restructure was to increase YMAC’s capacity to meet the demands of increasing workload on the organisation.27 This was not challenged during his cross-examination. [33] On 31 May 2023, Mr Kimber sent the below email to Mr Kolker: Hi Valere, Can you please urgently review the structure of your BSO unit with a view to presenting me with a revised structure to provide increased capacity to support some of the larger projects we’re involved in? Please consider cost implications in the equation. Thanks Nick Kimber [34] Mr Kimber’s evidence is that he did not send the email to other departments as YMAC was only considering a restructure of Mr Kolker’s and Ms Boross’s departments. Further, that there was urgency in the timing of his email as he wanted to have a proposal prepared for the next meeting of the YMAC Executive Management Team, which only meets every two months.28 [35] Between 31 May and 6 June 2023, Mr Kimber and Mr Kolker further discussed various restructure proposals.29 [36] On 6 June 2023, Mr Kolker provided a memo to Mr Kimber that proposed four changes to the BSO unit. Those changes, and the rationales for the changes, are summarised as follows: (a) Remove the Business Services Coordinator role based in Perth. This would improve efficiency and communication. Further, it would enhance employee growth, teamwork and accountability. Lastly, it would reduce bureaucracy. (b) Remove the Corporate receptionist role in Perth. This would allow for the reallocation of funds to more crucial areas; improve responsiveness; streamline work process; and allow for the current receptionist to advance within the company in one of the proposed new roles. (c) Add a Senior Business Services Officer role based in Perth. This would improve workload management; enhance decision-making; provide leadership backup; and improve client service. (d) Add two Business Services Officers roles. This would improve service delivery; enable specialisation; enhance inter-regional collaboration; enhance resource efficiency; and cater to business growth. [37] Mr Kolker’s memo also provided a comparison between the structure at the time and the new proposed structure, as below: -- 6 of 29 -- [2024] FWC 263 7 [38] Separate to this, Mr Kimber’s evidence is that he also held meetings with Ms Boross to discuss her department. Ms Boross presented a final proposal for her restructure on 8 June 2023.30 [39] Mr Kimber’s account is that the following events then occurred: (a) On 23 June 2023, Mr Kimber presented briefings on the proposal to restructure the BITS department and Ms Boross’s department to the YMAC Executive Management Team. The briefing on the BITS department mirrored the content of the memo prepared by Mr Kolker. (b) The Executive Management Team approved both restructure proposals. (c) In or around early to mid-August 2023, Mr Kimber prepared a briefing to the YMAC Board of Directors on the restructure proposals. Again, the briefing contained the same content as Mr Kolker’s memo. (d) The YMAC Board of Directors considered the proposals at a meeting on 18 August 2023. Mr Kimber was present at this meeting. The Board approved the proposals. [40] Ms Gonzalez-Skuja’s evidence is that she attended the Executive Management Team meeting on 23 June 2023. This meeting was the first time she learned of the proposed restructure.31 Mr Kimber subsequently told her on 22 August 2023 that the Board of Directors had approved the BITS department restructure.32 -- 7 of 29 -- [2024] FWC 263 8 [41] I accept Mr Kimber’s, Mr Kolker’s and Ms Gonzalez-Skuja’s evidence regarding the timeline of events and the discussions that occurred. [42] On 24 August 2023, Ms Harris received a letter from CEO Simon Hawkins regarding the restructure. The letter stated: Dear Allana, REF: ADVICE OF REDUNDANCY & OFFER OF REDEPLOYMENT The purpose of this letter is to confirm the outcome of a recent review by Yamatji Marlpa Aboriginal Corporation (YMAC) of its operational requirements, and what this means for you. As a result of operational requirements and a restructure within the Corporation, the position of Business Services Coordinator based in the Perth Office is no longer needed. Regrettably this will mean your employment in this position will terminate for redundancy. This decision is not a reflection on your performance. Redeployment Options YMAC is able to redeploy you to any of the roles of Senior Business Support Officer (Perth), Business Support Officer (Perth), Business Support Officer (Canarvon) or Business Support Officer (Hedland) for the remainder of your employment contract which ends on 26 March 2024. The redeployment will be on a trial basis for a three-month period and in accordance with 15.5(a) of the YMAC Enterprise Bargaining Agreement 2018 (EBA), which provides as follows: “Employees who are required to be redeployed will co-operate fully and, if necessary, avail themselves of the opportunity of redeployment on a trial basis. During the trial, should either the Employee or the Corporation decide that the Employee is unsuited for the position, the situation will be reviewed. The Employee will remain available for other redeployment or retraining opportunities or selective voluntary redundancy.” In accordance with the EBA 15.5 (b) and (d), you will be paid at the same salary as you receive in your current position for a period of 12 months (should the term of your new contract be extended beyond March 2024). You are required to respond to this offer of redeployment by 7 September 2023. Election to Take Redundancy If you choose not to be redeployed into any of the alternative roles offered above, you may take a redundancy on the following basis. Your employment will end immediately. In accordance with clause 15.1 of the EBA, due to your employment being terminated for redundancy, your notice period is 4 weeks. Instead of receiving that notice, you will be paid the equivalent sum of $7,274.00, plus the redundancy entitlement set out below. You will also be paid an amount of $3,637.00, representing 2 weeks of redundancy pay and based on your projected completion of 1 years’ continuous service with YMAC on 15 September 2024. Please note that YMAC is not obliged to make any such redundancy payment, as you -- 8 of 29 -- [2024] FWC 263 9 would not yet have completed that 12 months’ continuous service as at 8 September 2023, being the date of your termination of employment. As however a gesture of goodwill and in the circumstances, YMAC is prepared to pay you that redundancy entitlement. You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. Further Information & Resources You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at fairwork.gov.au Redundancy and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment. Affected employees and their partners have immediate access to tailored employment services under the Early Access initiative, prior to becoming eligible for income support. For information about support services available, visit Next steps if you lose your job at workforceaustralia.gov.au/individuals/coaching/assistance/retrenched-workers. In addition, the ‘What’s Next’ website provides an online self-help resources for affected employees and employers. This support is provided under Workforce Australia Services. For more information, visit whatsnext.dese.gov.au. Next Steps As above, you are required to advice YMAC as to whether you wish to accept the offer of redeployment by 5 September 2023. Please can you contact Elle Gonzalez-Skuja who can provide you with assistance and advice in relation to the offer of redeployment and to discuss any issues or questions you may have. Regards, Simon Hawkins Chief Executive Officer (JP) [43] On 25 August 2023, Ms Gonzalez-Skuja sent the following email to Ms Harris:33 Hi Allana, Sam and I would like to meet with you this afternoon to discuss a restructure to the BITS team and what this will mean for you. Are you available at 3pm to meet via Teams? Please can you keep the content of this email confidential until after we have met. Thank you. -- 9 of 29 -- [2024] FWC 263 10 [44] Later that day at 2:45pm, Ms Harris met with Ms Gonzalez-Skuja via MS Teams, with Samantha Rystenberg taking notes. [45] The evidence of Ms Gonzalez-Skuja and Ms Harris differed slightly as to what was said in this meeting. [46] Ms Gonzalez’s evidence of the meeting is that:34 (a) It went for five minutes and 49 seconds; and (b) She read through Mr Hawkins’s letter of 24 August 2023. [47] Ms Gonzalez-Skuja also tendered a signed record of conversation taken by Ms Rystenburg during the meeting, which relevantly provides: -- 10 of 29 -- [2024] FWC 263 11 [48] Ms Harris’s evidence of the meeting is that it went for approximately 10 minutes. Further, Ms Rystenburg’s minute of the meeting is not accurate, and it does not include that: (a) She asked to be redeployed to a different team.35 (b) Ms Gonzalez-Skuja stated that she would be on probation.36 [49] It was not put to Ms Gonzalez-Skuja during her cross examination that Ms Harris asked to be redeployed to a different team. It was put to Ms Gonzalez-Skuja that Ms Harris thought that she would be on probation. Ms Gonzalez-Skuja’s evidence is that the word ‘probation’ was -- 11 of 29 -- [2024] FWC 263 12 not used during the meeting.37 I found Ms Gonzalez-Skuja’s evidence on what occurred during this meeting more to be more credible. [50] Both Ms Harris and Ms Gonzalez-Skuja gave evidence that during this meeting Ms Harris did not ask any questions about what the trial period meant or entailed. 38 [51] After the meeting, Ms Harris and Ms Gonzalez-Skuja exchanged the following text messages: Ms Harris: I’ll take the redundancy Elle. You can organise Dawa to come and get all of my equipment. I will finalise what I’ve been working on today and send it all through. Let me know what else needs to be done. Ms Gonzalez-Skuja: Have a think about the redundancy over the weekend and then if you still want to proceed email me on Monday. Take care, Elle Ms Harris: Ok but I doubt I will change my mind. I love my team and my job but I can’t continue to work under a bully. I am devastated elle but there is literally nothing I can do about it. I tried to stand up to him and this was the outcome. Nothing more I can do. Thanks though. I’ll email on Monday. Ms Gonzalez-Skuja: Thanks Allana, we’ll temporarily disable your access as is our procedure. Be in touch on Monday. Best wishes [52] Ms Harris’s evidence regarding the options presented to her is as follows: (a) She thought that if she accepted one of the roles on offer, she would be subject to a three-month probation,39 where she could be terminated on 24 hours’ notice. This was the operative reason why she rejected the redeployment offers.40 (b) Three out of the four positions would require her to report to Mr Kolker. Because she had made the complaint about him in April 2023, she did not want to work for Mr Kolker. (c) She felt like she had no choice but to accept the redundancy. [53] On 28 August 2023, Ms Harris sent an email to Ms Gonzalez-Skuja stating, “Hi, I would like to accept the redundancy effective immediately. Can you please send me the letter via email for reference. Cheers, Allana”. [54] That same day, Ms Gonzalez-Skuja replied with:41 Hi Allana, Thank you for your email. I have attached the letter outlining your options as requested and apologise that this had to be delivered by screenshot on a text last week due to systems outage. -- 12 of 29 -- [2024] FWC 263 13 Your final pay will go through in tomorrow’s pay-run and you will receive a letter regarding this We are liaising with the team to organise collection of your YMAC working from home property and I understand that Christine has kindly offered to return your personal items from the office to you. I wish you all the best for the future and thank you for your contribution to YMAC. Kind regards, Elle Gonzalez-Skuja 2.5 The redeployment options [55] There is some contention between the parties as to whether the redeployment options offered to Ms Harris were reasonable. YMAC’s position is that Ms Harris’s original role as BS Coordinator was similar to the role of Senior BSO. [56] Ms Harris’s position is that they are very different roles, but did not lead any evidence detailing the differences, other than saying that the Senior BSO role has significantly less authority.42 [57] Ms Gonzalez-Skuja’s evidence on the roles is that: • She thought that Ms Harris would take the Senior BSO role based in Perth due to the similarity to the BS Coordinator role. • The Senior BSO role would have the same functions of supporting the BSO team and other departments that the BS Coordinator role had, but in an expanded capacity. This is because the BS Coordinator role only had one direct report, but the Senior BSO role would have three direct reports. • The substantive difference between the roles is that the Senior BSO role would have a reduced role in supporting Mr Kolker as the BITS Manager.43 • The BS Coordinator role was classified as a level 7 within YMAC’s banding structure, whereas the Senior BSO role was classified as a level 6-7. [58] Ms Gonzalez-Skuja’s evidence on the above was not challenged during her cross- examination. I accept Ms Gonzalez-Skuja’s evidence regarding the comparison of the BS Coordinator and Senior BSO roles. 2.6 New employment [59] Ms Gonzalez-Skuja led evidence that on 25 July 2023, Ms Harris asked her to be a reference for a job she had applied for as she was not comfortable asking Mr Kolker.44 Ms Harris’s evidence at the hearing is that as a contractor, she considers it good practice to update her resume and references. Further, that at that stage in her employment with YMAC, she was -- 13 of 29 -- [2024] FWC 263 14 starting to feel unsupported and uncomfortable, so she had started looking at different positions.45 Ms Harris’s evidence is that it has always been her practice to apply for jobs to network with different companies to see what they have available.46 [60] During her cross-examination, Ms Harris gave further evidence that she had applied for a second job, with Lease Electrical, on 22 August 2023. Ms Harris interviewed for that position on 23 August 2023.47 [61] Ms Harris commenced employment with Lease Electrical on 11 September 2023. She earns $85,000 per annum in this new role.48 [62] It was put to Ms Harris during her cross-examination that her evidence suggested that she was planning, if not looking, to move on from YMAC prior to being told about her redundancy. Ms Harris rejected this. I do not agree with Ms Harris on this point. There is nothing unusual with workers applying for different jobs while they are employed to see what is available in the market. It is also practical for someone on a fixed term contract, like Ms Harris was, to be looking for the security of the next contract or a full-time job. However, I place more credence on Ms Harris’s statement that she felt unsupported and uncomfortable and rely on Ms Harris’s actions and words that she did not want to continue to work under Mr Kolker. I find that Ms Harris was exploring her options to move on from YMAC prior to being told about her redundancy. [63] Ms Gonzalez-Skuja’s evidence is that the redeployment roles that Ms Harris could have taken have subsequently been filled and there is no capacity for her to be reinstated with YMAC.49 3. Submissions and consideration 3.1 Relevant legislation and provisions [64] Section 385 of the Act provides that: 385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. [65] The definition of ‘genuine redundancy’ is set out in s 389 as follows: 389 Meaning of genuine redundancy (1) A person’s dismissal was a case of genuine redundancy if: -- 14 of 29 -- [2024] FWC 263 15 (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. [66] The consultation clause in the YMAC Agreement is clause 13, which provides: 13. Introduction to change 13.1 In this clause, change includes but is not limited to: (a) significant change to workplace practices, including multi-skilling; (b) introduction of new technologies and equipment; (c) changes to the structure, status, functions or funding arrangements of the Corporation; (d) consideration of alternative service delivery mechanisms resulting in significant alteration to workplace practices; (e) significant changes to policies and procedures; (f) matters which significantly affect the working conditions, workplace environment, employment status or Position Description of Employees; (g) budgetary or other considerations that may lead to a decision to discontinue established services or programs or to declare Employee positions excess to requirements; and (h) changes to the Position Description of an Employee which are of a significant or substantive nature. 13.2 The Corporation shall consult in good faith with the Employees affected or likely to be affected by the change as soon as reasonably practicable after the proposed change has been disclosed. 13.3 Consultation shall consist of: (a) the matter being raised with the appropriate Line Manager and/or internal appropriate internal management committee; (b) the Corporation meeting with Employee representatives and union representatives to discuss the nature of the changes proposed, or if it is not reasonably practicable to meet, to notify them of the proposed changes prior to the matter being referred to Employees generally; -- 15 of 29 -- [2024] FWC 263 16 (c) subject to clause 14.2, the Corporation providing to affected parties full disclosure of information relevant to the change prior to the introduction of any change; and (d) the Corporation responding to those who have provided feedback or comments, prior to making any decision about whether or not to implement the proposed changes. 13.4 For the avoidance of doubt, consultation shall be interpreted to mean an explanation of a proposal not yet finally decided upon, followed by listening to what Employees and their representatives have to say, considering their responses and then deciding what will be done. 13.5 Unless the chances are required to meet regulatory requirements, the Corporation shall not implement any disputed changes until the dispute resolution process has been completed. 3.2 Genuine redundancy [67] In order to consider if Ms Harris was unfairly dismissed, it is necessary to first determine if her dismissal was a case of genuine redundancy. [68] Ms Harris submits that her dismissal was not a case of genuine redundancy for the following reasons:50 (a) There was insufficient consultation, and therefore notice as per the agreement.51 There cannot be a genuine redundancy if the Respondent has not complied with an obligation to consult under a modern award or enterprise agreement.52YMAC was required to consult with Ms Harris per clause 13 of the YMAC Agreement. Further, for a consultation to be genuine, it should be meaningful and should be engaged in before an irreversible decision has been made.53 (b) Her job still must be done by someone.54 In closing submissions it was advanced that the change to Ms Harris’s role was not operational, it was an internal change.55 [69] With regards to Ms Harris’s redundancy, YMAC submits the following: (a) The evidence of Mr Kimber, Ms Gonzalez-Skuja and Mr Kimber show that Ms Harris’s job was no longer required due to changes in operational requirements. (b) In written submissions, YMAC contended that consultation had occurred within the definition of Clause 13 of the YMAC Agreement. YMAC also contended that meaningful consultation was intended and expected to take place during the two-week period Ms Harris was given to respond to Mr Hawkins’s letter of 25 August 2023. [70] It is well-accepted that a job or role is a collection of functions, duties and responsibilities.56 Functions, duties and responsibilities may cease to be a part of a job or role through a reorganisation or restructure of duties. The question is then whether the employee has any duties left to perform or discharge.57 Where there is no longer any function or duty for an employee to perform, their job becomes redundant; or, put another way, the employer no longer requires that employee’s job to be performed by anyone due to changes in the enterprise’s operational requirements. -- 16 of 29 -- [2024] FWC 263 17 [71] This is true even if aspects of the employee’s duties are still being performed by other employees.58 In a situation or organisational restructure, the question is whether the previous job has survived the restructure, not whether the duties have survived in some form.59 [72] I accept Mr Kimber’s uncontested evidence that there was a need to restructure the BITS department to meet increasing workload. I do not accept Ms Harris’s submission that Mr Kolker engineered the restructure to push her out of YMAC or took advantage of the restructure to get rid of her. It is clear from Mr Kimber’s evidence that the restructure affected two departments, and that the discussions for the restructure commenced in at least February 2023. Further, the BS Coordinator role was not the only role that was made redundant. [73] I find that the operational requirements necessitating the restructure were bona fide and YMAC no longer required anyone to do the BS Coordinator role. [74] However, I find that YMAC have not satisfied s 389(1(b). In closing counsel for YMAC conceded that given the evidence that unfolded during the hearing, YMAC might have difficulty persuading me that YMAC properly engaged in consultation pursuant to the YMAC Agreement. This concession was properly made. [75] I find that the YMAC Agreement applied to Ms Harris. I further find that the restructure of the BITS department falls within the definition of change in Clause 13.1(f) and (g) of the YMAC Agreement. I find that Clause 13.3(c) and 13.4 require that consultation and disclosure of information to affected employees must occur before the change is decided upon. [76] It is clear from the evidence of Mr Kimber, Mr Kolker and Ms Gonzalez-Skuja that both the YMAC Executive Management Team and Board had voted to approve the BITS department restructure by 18 August 2023. This was following discussions regarding a potential restructure between Mr Kimber and Mr Kolker for months leading up to August. The first that Ms Harris learned of the restructure was by Mr Hawkins’ letter on 25 August 2023. By that point, there was no genuine opportunity for her to provide feedback on the restructure. The only options available to Ms Harris at that point was to accept a redeployment or redundancy package. [77] Accordingly, the dismissal could not be a genuine redundancy. 3.2 Was Ms Harris unfairly dismissed? [78] I now turn to considering whether Ms Harris was unfairly dismissed. In making my decision, I must have regard to s 387 of the Act, which provides as follows: 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and -- 17 of 29 -- [2024] FWC 263 18 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [79] I set out my consideration of each of the criteria below. Section 387(a) – was there a valid reason for the dismissal related to Ms Harris’s capacity or conduct? [80] Ms Harris submits that there was no valid reason for the dismissal relating to her capacity or conduct. YMAC submits that there was a valid reason for terminating Ms Harris’s employment as she chose not to accept the redeployment options offered to her. The redeployment options fell within the definition of “Reasonable Alternative Employment” in Clause 2 of the YMAC Agreement. YMAC submits it had a valid reason for terminating Ms Harris’s employment as it was a consequence of her accepting the resignation package.60 [81] I do not accept YMAC’s argument. Section 387(a) requires a valid reason regarding Ms Harris’s capacity or conduct. Redundancy and not considering redeployment options is not a valid reason relating to capacity or conduct. However, it is a factor that I consider later in this decision pursuant to s 387(h). [82] I am satisfied that there was no valid reason for Ms Harris’s dismissal related to her capacity or conduct. Section 387(b) and (c) – notification of valid reason and opportunity to respond [83] Ms Harris was advised of her dismissal at the time it took effect. The reason for dismissal did not relate to her capacity or conduct. A consideration of whether or not she was given an opportunity to respond to the reason for dismissal relating to capacity or conduct is a neutral consideration. Section 387(d) – any unreasonable refusal by the Respondent to allow Ms Harris a support person [84] Neither party made submissions on this part. I find this to be a neutral consideration in this matter. -- 18 of 29 -- [2024] FWC 263 19 Section 387(e) – warnings concerning performance [85] This was not a relevant consideration in this matter. Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed [86] As per YMAC’s Form F3 filed in this matter, YMAC has 158 employees. It also clearly has dedicated human resource specialists such as Ms Gonzalez-Skuja. I find that this is a neutral consideration in this matter. Section 387(h) – any other matters the Commission considers relevant [87] Whilst YMAC failed to consult with Ms Harris with respect to the restructure before it occurred, I accept that there were genuine operational reasons for the restructure. [88] I also accept that YMAC offered Ms Harris reasonable redeployment options. Clause 2.25 of the YMAC Agreement defines Reasonable Alternative Employment as, “…a substantive position within the Corporation or its successors or an external Corporation with similar pay and performing a similar role and/or employing a similar level of skills and responsibility to the Employee’s previous position and for which the Employee is reasonably qualified or experienced, and where previous service is recognised.” [89] I accept Ms Gonzalez-Skuja’s evidence that the role of BS Coordinator and Senior BSO have commonality in duties and that Senior BSO is of a similar classification banding to BS Coordinator. The Senior BSO role is also based in the same location as Ms Harris’s role at the time. I find that the Senior BSO role was reasonable alternative employment within the context of the YMAC Agreement, but also generally. [90] I do not accept Ms Harris’s submission that by taking one of the redeployment options offered to her that she would have been subject a probationary period where her employment could be terminated on 24 hours’ notice. The letter from Mr Hawkins on 25 August 2023 outlines that any redeployment would be on a trial basis for a three-month period in accordance with clause 15.5(a) of the YMAC Agreement. “Trial basis” clearly has a specific meaning in these circumstances. [91] Clause 15.5 of the YMAC Agreement relevantly provides: (a) Employees who are required to be redeployed will co-operate fully and, if necessary, avail themselves of the opportunity of redeployment on a trial basis. During the trial, should either the Employee or the Corporation decide that the Employee is unsuited for the position, the situation will be reviewed. The Employee will remain available for other redeployment or retraining opportunities or selective voluntary redundancy. (b) The Employee’s substantive classified rate of pay prior to the redeployment trial will be maintained during any redeployment trial. -- 19 of 29 -- [2024] FWC 263 20 (c) Employees who are required to travel additional distances (beyond those travelled in their former position) will have additional travelling time and fares paid. Once appointment at the new location is confirmed, this payment will cease. Relocation and removal allowances applicable under this Agreement will be available for Employees required to relocate under these provisions. (d) An Employee who accepts redeployment into a new substantive position at a lower level will continue to be paid at the rate of their substantive classification prior to redeployment for a period of one (1) year from the date that the Employee is advised in writing that their position is redundant. (e) The Corporation may terminate the services of a redundant Employee if that Employee does not co-operate in pursuing reasonable redeployment opportunities or if Reasonable Alternative Employment has been refused without reasonable grounds for that refusal. (f) Where an Employee’s position is not made redundant, but the Employee wishes to accept voluntary redundancy, that Employee can be substituted for an Employee whose position has been identified as redundant, if suitable substitutions can be made. Substitution can only occur where the Corporation and both Employees agree with such arrangements. (g) An Employee undergoing redeployment will have access to sufficient and appropriate on- the-job retraining to enable them to apply to fill another position which is Reasonable Alternative Employment for which they are otherwise reasonably qualified and experienced (h) All retraining arrangements will be set out in a written, agreed Development Plan for Reasonable Alternative Employment between the Corporation and the Employee and, in case of an Employee with poor or limited literacy, verbally explained to the Employee by their Line Manager. [92] “Trial basis” is not used in any other clause in the YMAC Agreement. The YMAC Agreement uses both “trial basis” and “probation”. Clause 3.5 of the YMAC Agreement provides that: 3.5 An Employee other than a Casual Employee may be required to serve a probation period of three (3) months with a three (3) month extension with reasonable justification but no longer than six (6) months in total. [93] Then under the heading “Termination”, clause 3.8 provides: 3.8 Subject to 3.11 the Corporation may terminate the employment of an ongoing Employee, by giving the Employee not less than the following period of written notice or payment in lieu: (a) During any probationary period, one (1) week; or (b) Two (2) weeks plus an additional week for each year of continuous service up to a maximum of twenty-six (26) weeks. [94] Clause 3.11 provides that the Corporation may dismiss an employee without notice or payment in lieu for conduct that justifies summary dismissal. [95] Considering the above clauses, I make the following findings: -- 20 of 29 -- [2024] FWC 263 21 (a) The reference to “trial basis” in clause 15.5(a) does not have the same meaning as a probationary period. This is supported by the fact that the agreement uses both terms in different contexts. (b) The context of “trial basis” is where an employee accepts redeployment. The trial is for the position, not the employee. The employee and YMAC are to use the trial to determine whether the new role is suitable. If the position is not suitable, then the parties are to review the situation, and the employee will be available for other redeployment opportunities or selective voluntary redundancy. There is nothing in the language of 15.5 that suggests that the usual notice periods for termination are supplanted or that the employee returns to a probationary state. (c) “Probation” in the context of the YMAC Agreement refers to the starting period of a newly-hired employee. The duration of this probation period is defined in clause 3.5. During the probationary period, either party may terminate the employment relationship with one week notice. There is no merit to Ms Harris’s contention that accepting a redeployment opportunity would be the same as going back on probation where she could be dismissed on 24 hours’ notice; the YMAC Agreement requires one week notice even for employees on probation. (d) If Ms Harris had accepted one of the redeployment options, she would have had three months to assess if she liked the role. During this time, she would have had no drop in income pursuant to clause 15.5(b). (e) If Ms Harris and YMAC had agreed that the new role was suitable for Ms Harris, she would have continued to receive the same income until the end of her contract in March 2024 by virtue of clause 15.5(d). [96] I accept Ms Gonzalez-Skuja’s evidence that she encouraged Ms Harris to think about her options. I also agree with Ms Gonzalez-Skuja’s assessment that the Senior BSO role was a reasonable opportunity for Ms Harris, particularly given that it would have involved providing less support to Mr Kolker. [97] I am satisfied that YMAC had a defensible reason for dismissing Ms Harris in that they had made her original role of BS Coordinator redundant, and she had chosen to not take one of the redeployment options offered. As was found by the majority in UES (Int’l) Pty Ltd v Leevan Harvey61 (UES), this can form a valid reason for dismissal – just not a valid reason relating to conduct or conduct.62 This is a relevant consideration in determining if the dismissal was harsh, unjust or unreasonable. [98] Ms Harris submits that she was terminated from her employment while still suffering from the psychological consequences of a traumatic work event, which weighs in favour of a finding that the dismissal was harsh. I have taken into account Ms Harris’s traumatic experience. However, I am limited in the weight I can afford this consideration. This is because the medical certificate dated 10 August 2023 that Ms Harris tendered into evidence certified that Ms Harris was fit to return to normal work. Further, I note that Ms Harris did not submit any evidence supporting her submission of ongoing psychological effects. -- 21 of 29 -- [2024] FWC 263 22 Conclusion as to harsh, unjust or unreasonable [99] The majority in UES found that a “failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable”.63 All factors in s 387 must be considered and weighed. [100] I have given significant weight to my finding that YMAC offered Ms Harris a reasonable redeployment option that was similar to her original role with the same pay. I admit that I was puzzled by Ms Harris’s insistence in her evidence and submissions that “trial basis” in the context of the YMAC Agreement meant that she could be dismissed at short notice, even though the YMAC Agreement prevents YMAC from dismissing an employee in the fashion contended by Ms Harris. Ms Harris has notable HR qualifications and experience that would have assisted her in understanding the YMAC Agreement and its obligations. Further Ms Harris’s own evidence is that she did not clarify what “trial basis” meant, and that “as soon as [she] saw the “trial basis” in the letter [she] made a decision”.64 [101] I also found it difficult to reconcile Ms Harris’s evidence with her submissions regarding Mr Kolker. Ms Harris’s evidence was that the redeployment options in Perth would have forced her to work under a manager who had harassed her. 65 I accept that Ms Harris did make a complaint about Mr Kolker and that she was aggrieved by comments he had made. I also accept that at the time of the dismissal she still had negative feelings regarding her relationship with Mr Kolker. However, she also gave evidence that she had a working relationship with Mr Kolker as she loved the work.66 [102] However, I have also given considerable weight to my finding that YMAC did not comply with the consultation requirements in the YMAC Agreement. The requirement to consult, especially on matters such as redundancy, should never be taken for granted. It gives employees the potential to affect the end outcome, which can include averting the need for their role to be made redundant or otherwise mitigating the effect of a redundancy. [103] Considering all the factors in s 387, I find that the failure to consult Ms Harris makes the decision to dismiss her unreasonable. I am therefore satisfied that Ms Harris was unfairly dismissed. 4. Remedy [104] Section 390 of the Act sets out the circumstances in which an order for reinstatement or compensation may be made: 390 When the FWC may order remedy for unfair dismissal (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). (2) The FWC may make the order only if the person has made an application under section 394. -- 22 of 29 -- [2024] FWC 263 23 (3) The FWC must not order the payment of compensation to the person unless: (a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case. [105] I am satisfied pursuant to s 390(1) and (2) that Ms Harris made an application for unfair dismissal, is a person protected from unfair dismissal and was unfairly dismissed. [106] Ms Harris seeks reinstatement. She did not specify to what role she should be reinstated to. Ms Harris also did not challenge Ms Gonzalez-Skuja’s evidence that the original redeployment opportunities that were offered in the restructure are no longer available. [107] YMAC submits that reinstatement is not appropriate. YMAC contends that from the evidence, it is unlikely that Ms Harris and Mr Kolker could re-establish the level of trust necessary to be able to work together.67 Ms Harris did not lead any evidence or make any submissions to challenge this point. [108] In Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter68 (Nguyen), the Full Bench of the Commission considered and summarised relevant principles in assessing the impact of loss and confidence on the question of whether reinstatement is appropriate. I respectfully adopt the Full Bench’s principles at [27] as below (citations omitted): • Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. • Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship wilk destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. • An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. • The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. • The fact that it may be difficult or embarrassing for an employer to be required to r-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. -- 23 of 29 -- [2024] FWC 263 24 [109] With these principles in mind, I accept YMAC’s submissions that the trust and confidence between the parties has broken down such that reinstatement is not appropriate. It is clear from Ms Harris’s own evidence that she did not want to work in any sort of position that involved reporting to Mr Kolker. In reaching this finding, I rely on Ms Harris’s text messages to Ms Gonzalez-Skuja where she blames her redundancy on Mr Kolker. I also rely on Ms Harris’s evidence at the hearing where she squarely put her belief that she was chosen for redundancy because of Mr Kolker. This lack of trust and confidence combined with YMAC’s evidence that the positions that Ms Harris could have been redeployed into have been filled inform my finding that reinstatement is not appropriate. [110] I turn now to consider s 390(3)(b). As stated by the Full Bench in Nguyen, the question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.69 Section 390(3)(b) requires that all circumstances of the case to be taken into consideration. As to what this consideration requires, I respectfully adopt the reasoning of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge70(Bowden) at [40]: As to whether an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case, we note that the phrase “all the circumstances of the case” in s.390(3)(b) of the FW Act is also contained in s.392(2). However, in s.392(2) the phrase is followed by a reference to the matters in ss.392(2)(a) to (g) and s.392(2)(g) concerns “any other matter that the FWC considers relevant.” In this case, we think the matters in ss.392(2)(a) to (g) embrace all the circumstances of the case relevant to our consideration of whether a compensation order is appropriate. In Henderson v Department of Defence it was recognised that the same matters may serve different purposes in s.170CH of the WR Act, as it was prior to the Work Choices amendments… [111] In this regard, s 392 of the Act requires all the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement and sets out seven criteria. I assess each of those below using the methodology in Bowden, which considered authorities such as Sprigg v Paul’s Licensed Festival Supermarket71 and Ellawala v Australian Postal Corporation.72 I adopt the Bowden methodology but observe that Bowden and the formulation in Sprigg serve as a guide, rather than a decision rule. Effect of the order on the viability of YMAC’s enterprise: s 392(2)(a) [112] Neither party made any submission on this point. I am satisfied that an award of compensation would not affect YMAC’s viability. Length of Ms Harris’s service: s 392(2)(b) [113] Ms Harris commenced her initial casual role with YMAC on 14 September 2022. She commenced her full-time role a BS Coordinator in March 2023 and her dismissal took effect on 5 September 2023. Her length of service is less than one year. Remuneration that Ms Harris would have received: s 392(2)(c) -- 24 of 29 -- [2024] FWC 263 25 [114] The consideration is what remuneration Ms Harris would have received, or would have been likely to receive, if she had not been dismissed. This assessment is to be conducted in the context of my finding that Ms Harris was unfairly dismissed, but that there were genuine operational reasons behind the restructure that led to her position being made redundant. The failing was YMAC’s lack of consultation in accordance with the YMAC Agreement. [115] In closing submissions, counsel for Ms Harris contended that based on the YMAC Agreement, consultation would have taken a few months.73 Ms Harris did not directly make the submission that she would have remained employed if proper consultation had occurred. YMAC contends that consultation would have only taken a very short period of time.74 YMAC also contends that regardless, Ms Harris was applying for other jobs and so was unlikely to remain in her role at YMAC for much longer. [116] Clause 13.3 of the YMAC Agreement sets out the steps for consultation: (a) The matter must be raised with the appropriate Line Manager and/or internal appropriate internal management committee. (b) YMAC must meet with any employee and union representatives to discuss the nature of the changes proposed prior to the matter being referred to employees generally. (c) YMAC will provide to affected employees full disclosure of information relevant to the change prior to the introduction of the change. (d) YMAC will respond to any feedback or comments prior to making any decision about whether or not to implement the proposed changes. [117] In this case, Ms Harris’s line manager was Mr Kolker, and the issue of the restructure was clearly raised with him. No evidence was led regarding whether there were any relevant employee or union representatives for this matter. [118] In this matter, I find that it would not have taken any additional time for YMAC to meet with any relevant employee or union representatives (if there were any); provide information on the proposed restructure to affected employees; and respond to any feedback. I base this finding on the fact that the decision to restructure the BITS department was made as early as February 2023. [119] I find that if YMAC had complied with its consultation requirements, the steps outlined in clause 13.3 would have either taken place between February to May 2023 when Mr Kimber and Mr Kolker were discussing restructure options, or between 6 June 2023 when Mr Kolker drafted his proposed restructure memo and 23 June 2023 when the YMAC Executive Management Team met. [120] I am not persuaded from Ms Harris’s evidence that if proper consultation had occurred that it would have resulted in Ms Harris continuing in another role with YMAC. I base this finding on Ms Harris’s adamant stance that accepting a redeployment would allow YMAC to dismiss her at short notice; her clear distaste for continuing to work with Mr Kolker; and the fact that she had recently applied for two different jobs. -- 25 of 29 -- [2024] FWC 263 26 [121] Therefore, I do not find that Ms Harris would have received any additional remuneration if she had not been dismissed. Efforts of Ms Harris to mitigate the loss because of the dismissal: s 392(2)(d) [122] I accept Ms Harris’s evidence that she commenced her new job on 11 September 2023. Ms Harris was informed of her dismissal on 28 August 2023, and was paid four weeks’ notice and two weeks’ redundancy. She has clearly made efforts to mitigate her loss. Remuneration earned by Ms Harris: s 392(2)(e) [123] Ms Harris earns $85,000 per annum in her new role. This is less than the $94,865.06 per annum she earned working for YMAC. Income reasonably likely to be earned: s 392(2)(f) [124] Neither party made submissions on this point. I find that Ms Harris is reasonably likely to continue earning at the rate of $85,000 in her current role between any order for compensation and actual compensation. Other relevant matters: s 392(2)(h) [125] The Respondent made submissions that an order for payment of compensation is not appropriate in all circumstances of the case for the following reasons: (a) Ms Harris chose to leave her employment with YMAC and take the offered redundancy package, being four weeks’ notice and two weeks’ redundancy pay. The redundancy pay was gratuitous given that Ms Harris had not worked in full-time employment for the required period of one year at the time of her termination as per clause 15.3 of the YMAC Agreement. Ms Harris did not contest that she had received these amounts or that under the YMAC Agreement she was not entitled to the two weeks’ redundancy pay. (b) Ms Harris refused to be redeployed into a role with very similar status and seniority to her previous role, at the same rate of pay. 5. Conclusion [126] In all the circumstances, I do not consider that payment of compensation is appropriate. This is because of my findings that: (a) a proper consultation would not have taken any additional time given the restructure was discussed internally over a period of several months. The deficiency in the process was that it did not involve any relevant representatives or the affected employees. This could have been undertaken with the internal discussions that did occur; -- 26 of 29 -- [2024] FWC 263 27 (b) even if a proper consultation had been conducted, Ms Harris’s employment would not continued; and (c) Ms Harris was offered very reasonable redeployment options. In particular, with the Senior BSO role she would have remained in Perth, had similar duties and authority, with no drop in income for the rest of her contract. [127] I have also taken into consideration that Ms Harris received a two-week redundancy payment even though she was not entitled to one under the terms of the YMAC Agreement. [128] I therefore decline to order any remedy, notwithstanding that I found that Ms Harris was a person protected from unfair dismissal and had been unfairly dismissed. [129] In accordance with s 392(4) of the Act, I make no allowance for any shock, distress or humiliation that Ms Harris have suffered from her dismissal. COMMISSIONER Appearances: A Wright for the Applicant T Lyons for the Respondent Hearing details: 2023. Perth (via MS Teams) 20 December Printed by authority of the Commonwealth Government Printer <PR770832> 1 Transcript, 20 December 2023, PN110-PN117. 2 Digital Court Book (DCB), page 106 at [1]. -- 27 of 29 -- [2024] FWC 263 28 3 Ibid, page 120 at [1]. 4 Ibid, page 95 at [1]. 5 https://www.ymac.org.au/about-us/who-we-are/ 6 DCB, page 106 at [2]. 7 Ibid, page 11 at [1]. 8 Ibid, pages 13-19. 9 Ibid, page 6. 10 Ibid, page 124 at [23]. 11 Ibid, page 125 at [24]. 12 Ibid, page 124 at [25]. 13 Ibid, page 98 at [8]. 14 Ibid, page 99 at [9]. 15Transcript, 20 December 2023, PN211-PN213. 16 DCB page 124 at [27]. 17 Ibid, page 125 at [28]. 18 Ibid, page 96 at [4]. 19 Transcript, 20 December 2023, PN214-PN223. 20 Ibid, PN191. 21 Ibid, PN291. 22 DCB, page 107 at [4]. 23 Transcript, 20 December 2023, PN309. 24 Ibid, PN312. 25 Ibid, PN528-PN532. 26 Ibid, PN569. 27 Ibid, PN341. 28 Ibid, PN343-PN344. 29 DCB, page 107 at [6]. 30 Ibid, page 107 at [6]. 31 Ibid, page 121 at [8]. 32 Ibid at [9]. 33 Ibid, page 146. 34 Transcript, 20 December 2023, PN392-PN393. 35 Transcript, 20 December 2023, PN128. 36 Ibid, PN161. 37 Ibid, PN442. 38 Ibid, PN180, PN438-PN440. 39 DCB, page 12 at [21]. 40 Transcript, 20 December 2023, PN226-PN228. 41 DCB, page 150. 42 Ibid, page 12 at [24]. 43 Transcript, 20 December 2023, PN414-PN419. 44 DCB, page 187. 45 Transcript, 20 December 2023, PN54. 46 Ibid, PN57. -- 28 of 29 -- [2024] FWC 263 29 47 Ibid, PN108-PN109. 48 DCB, page 12 at [29]. 49 Ibid, page 128 at [46]. 50 DCB page 8 at [5]. 51 Amalgamated Metals Foundry and Shipwrights Union and Broken Hill Proprietary Co Limited, Whyalla & Ors; Electrical Trades Union of Australia and Metal Trades Industry Association of Australia & Ors; Transport Workers Union of Australia and Ansett Transport Industries (Operations) Pty Limited & Ors (1984) 294 CAR 175. 52 UES (int’l) Pty Ltd v Harvey [2012] FWAFB 5241. 53 Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917 at [20]. 54 Foster’s Group Limited v Wing [2005] VSCA 322 at [67]. 55 Transcript, 20 December 2023, PN599. 56 Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 at [17]. 57 Ibid. 58 Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-405. 59 Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27] 60 DCB, page 49 at [27] – page 52 at [42]. 61 [2012] FWAFB 5241. 62 Ibid at [26]-[29]. 63 UES at [49]. 64 Transcript, 20 December 2023, PN180. 65 DCB page 24 at [11]. 66 Transcript, 20 December 2023, PN2024-PN213. 67 DCB, page 54 at [53]. 68 [2014] FWC 3574. 69 Ibid at [9]. 70 [2013] FWCFB 431. 71 (1998) 99 IR 21. 72 Print S5109. 73 Transcript, 20 December 2023, PN672. 74 Ibid, PN727. -- 29 of 29 --