Ann Shaw v Royal Taree Operations Pty Ltd [2024] FWC 1996

1 Fair Work Act 2009 s.394—Unfair dismissal Ann Shaw v Royal Taree Operations Pty Ltd (U2024/2915) COMMISSIONER CRAWFORD SYDNEY, 29 JULY 2024 Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – whether reasonable to redeploy – alleged commitment to return to previous role – jurisdictional objection upheld – application dismissed. Background [1] On 26 September 2022, Ann Shaw commenced full-time employment with Manning River Hotel Operations Pty Ltd (Manning River) as a chef at the Manning River Hotel. On 8 August 2023, Ms Shaw commenced employment with Royal Taree Operations Pty Ltd (Royal Taree) as head chef at the Royal Hotel Taree. Manning River and Royal Taree are associated entities. There is no dispute that a “transfer of employment” occurred within the meaning of s.22(7)(a) of the Fair Work Act 2009 (FW Act) when Ms Shaw’s employment ended with Manning River and commenced with Royal Taree and her prior service with Manning River was recognised by Royal Taree. [2] Ms Shaw’s employment with Royal Taree was terminated effective 22 February 2024 by reason of redundancy. The dismissal arose from a change in ownership of the Royal Hotel Taree. The new owners, Everest Hospitality Pty Ltd (Everest Hospitality), decided not to offer permanent employment to any existing employees of Royal Taree. Ms Shaw declined an offer of casual employment from Everest Hospitality. [3] Ms Shaw filed a Form F2 unfair dismissal application on 14 March 2024. Ms Shaw sought compensation in lieu of reinstatement as a proposed remedy in her application. Ms Shaw indicated the application was not being filed within 21 days of her dismissal taking effect. [4] Royal Taree filed a Form F3 employer response on 2 April 2024. Royal Taree raised two jurisdictional objections to Ms Shaw’s application. Royal Taree argued Ms Shaw needed an extension of time to file her application because it was not lodged within 21 days of her dismissal taking effect and that an extension of time should not be granted. Royal Taree also argued Ms Shaw’s dismissal was a case of “genuine redundancy” as defined in s.389 of the FW Act. [2024] FWC 1996 DECISION -- 1 of 14 -- [2024] FWC 1996 2 [5] The first jurisdictional objection appears to have arisen from confusion about how the 21-day filing period is calculated. Given Ms Shaw’s dismissal took effect on 22 February 2024, the 21-day filing period ended at midnight on 14 March 2024. Ms Shaw filed her application at 2:21pm on 14 March 2024, which was prior to the 21-day period ending. Therefore, Ms Shaw mistakenly indicated in her Form F2 application that she had missed the 21-day period. Royal Taree relied on Ms Shaw’s error to argue in its Form F3 that an extension of time was required. Royal Taree did not press this argument after filing its Form F3 response. [6] I find Ms Shaw’s application was filed within the 21-day period and that an extension of time is not required. I dismiss the first jurisdictional objection. [7] I subsequently issued directions for the filing of material regarding whether Ms Shaw’s dismissal was a case of “genuine redundancy” and regarding the merits of Ms Shaw’s application. A determinative conference/hearing was listed in relation to those matters on 16 July 2024 via video. [8] Ms Shaw represented herself at the determinative conference/hearing on 16 July 2024 with support from Uncle Matthew Leeder. Jason Limberiou (Human Resources Manager) represented Royal Taree. [9] At the beginning of the proceeding, I indicated my provisional view was that I should conduct a determinative conference rather than a hearing, given neither party was legally represented. There was no opposition to this approach. I conducted a determinative conference. Material filed Ms Shaw [10] Ms Shaw relied on the following evidence in support of her unfair dismissal application. [11] Ms Shaw relied on her witness statement dated 31 May 2024. Ms Shaw’s statement had the following documents attached: • A letter to Ms Shaw headed ‘Notice of Meeting’ dated 21 February 2024. The letter refers to a previous letter dated 19 February 2024 and a meeting on 20 February 2024 concerning the impact of the sale of the Royal Hotel Taree on Ms Shaw’s employment. The letter directs Ms Shaw to attend a meeting on 22 February 2024 where she would be provided with an “outcome” concerning her employment. • Ms Shaw’s termination letter dated 22 February 2024. The letter states that the sale of the Royal Hotel Taree has resulted in the position of head chef no longer being required by Royal Taree. • Various screenshots of text messages between Ms Shaw and Jesse Overvliet (Operations Manager – Mid North Coast) relating to Ms Shaw’s employment with Royal Taree. The messages include Ms Shaw asking Mr Overvliet on 24 November 2023 if she will “have a job when the Royal changes hands?”. Mr Overvliet’s response refers to a stand down caused by equipment failure and states: -- 2 of 14 -- [2024] FWC 1996 3 “This has nothing to do with your role at the Royal or in the future. I’ve stated before you’ll have a job when the Royal changes hands. We’ll have everything sorted by the 11th and hope to see you back then.” There are also screenshots of messages exchanged between Ms Shaw and: - other staff on a group chat regarding the stand down caused by equipment failure in November 2023, - a sales representative who was concerned about Ms Shaw’s mental health in February 2024, - Chris Parley (Manager of The Royal Hotel Taree until 7 January 2024) about operational matters. Ms Shaw raises several safety concerns and requests assistance from Mr Parley, and - Mr Overvliet, Kallum (Mr Parley’s replacement as manager of the Royal Hotel Taree), and Mr Parley concerning safety issues associated with Ms Shaw’s pregnancy and her workload. • Screenshots of timesheets recording Ms Shaw’s working hours at the Royal Hotel Taree. I marked Ms Shaw’s statement and the attached documents Exhibit A1. [12] Ms Shaw relied on her reply witness statement dated 3 July 2024. The statement had the following documents attached: • A screenshot of a Facebook post from the Manning River Hotel on 11 March 2024 seeking applications for a Bar/Gaming Attendant position. • A letter from Ms Shaw to Nicholas Quinn (Director of Royal Taree) dated 24 April 2024 regarding a potential settlement of her unfair dismissal application. • A screenshots of text messages between Ms Shaw and a friend regarding a new employee named Blake Bourke who had commenced working in the kitchen at the Manning River Hotel in May 2024. • Various documents concerning Mr Overvliet’s position with the Manning River Hotel. The documents indicate Mr Overvliet is a director and shareholder of Manning River Hotel. • A screenshot of a “Join Our Team” website page for the Old Bar Tavern. I marked Ms Shaw’s reply statement, and the attached documents, Exhibit A2. [13] Ms Shaw was cross-examined on her evidence during the determinative conference. -- 3 of 14 -- [2024] FWC 1996 4 [14] Ms Shaw relied on a witness statement from Mr Leeder dated 31 May 2024. Mr Leeder provided evidence about three meetings he attended as a support person for Ms Shaw on 30 July 2023, 20 February 2024 and 22 February 2024. Mr Leeder’s evidence was that Mr Overvliet promised Ms Shaw she could return to the Manning River Hotel when the sale of the Royal Hotel Taree was completed. Mr Leeder also referred to a lack of compassion and understanding from Mr Overvliet, Mr Limberiou, and Mr Quinn during the meetings on 20 and 22 February 2024. I marked Mr Leeder’s statement Exhibit A3. Mr Leeder was cross-examined during the determinative conference. [15] Ms Shaw also relied on a witness statement from Hayden Attenborough dated 1 July 2024. Mr Attenborough worked under Ms Shaw’s supervision at the Royal Hotel Taree. Mr Attenborough gave evidence of Mr Parley asking Ms Shaw and Mr Attenborough if they had a preferred place of work after the sale of the Royal Hotel Taree on two occasions prior to the stand down period in November 2023. I marked Mr Attenborough’s statement Exhibit A4. Mr Attenborough was not required for cross-examination. [16] Ms Shaw and Mr Leeder provided oral closing submissions at the end of the determinative conference. Royal Taree [17] Royal Taree relied on the following evidence in support of its jurisdictional objection and in opposition to Ms Shaw’s unfair dismissal application. [18] Royal Taree relied on a witness statement from Mr Quinn dated 21 June 2024. I marked Mr Quinn’s statement Exhibit R1. Mr Quinn also confirmed the accuracy of the following documents that had been separately filed by Royal Taree under an affirmation during the determinative conference: • Ms Shaw’s contract of employment with Royal Taree which was signed by Ms Shaw on 22 September 2023. I marked Ms Shaw’s contract with Royal Taree as Exhibit R2. • A letter from Mr Overvliet to Ms Shaw dated 21 February 2024. The letter directs Ms Shaw to attend a meeting on 22 February 2024 where she will be informed of the “outcome” concerningher employment. I marked the letter Exhibit R3. • A letter from Mr Limberiou to Ms Shaw dated 19 February 2024. The letter provides Ms Shaw with notice of major change associated with the sale of the Royal Hotel Taree effective 22 February 2024. The letter states a consultation meeting will be held with Ms Shaw on 20 February 2024. I marked the letter Exhibit R4. • A copy of Ms Shaw’s Employment Separation Certificate dated 22 February 2024. I marked the certificate Exhibit R5. • Ms Shaw’s termination letter dated 22 February 2024 which was signed by Mr Overvliet. I marked the letter Exhibit R6. -- 4 of 14 -- [2024] FWC 1996 5 • A fully signed copy of Ms Shaw’s contract of employment with Manning River. The signatures are not dated but the contract states the employment would commence on 26 September 2022. I marked the contract Exhibit R7. [19] Mr Quinn was cross-examined on his statement and the documents identified above during the determinative conference. [20] Royal Taree relied upon a witness statement from Mr Overvliet dated 21 June 2024. I marked Mr Overvliet’s statement Exhibit R8. Mr Overvliet was cross-examined on his statement during the determinative conference. [21] Royal Taree relied upon a witness statement from Cory Hopton dated 21 June 2024. Mr Hopton was formerly a sous chef at the Manning River Hotel and is now the head chef at Old Bar Tavern, which is operated by an associated entity of Royal Taree and Manning River. I marked Mr Hopton’s statement Exhibit R9. Mr Hopton was cross-examined on his evidence during the determinative conference. [22] Royal Taree relied on upon a witness statement from Mr Parley dated 21 June 2024. I marked Mr Parley’s statement Exhibit R10. Mr Parley was cross-examined on his evidence during the determinative conference. [23] Mr Limberiou made oral closing submissions at the end of the determinative conference. Statutory provisions – unfair dismissal and initial matters [24] Section 385 of the FW Act defines when a person has been “unfairly dismissed”. The definition states: “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.” [25] The matters listed in s.385 are not dealt with in the order they appear in that section. That is because of s.396 of the FW Act, which states: “The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); -- 5 of 14 -- [2024] FWC 1996 6 (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC); (d) whether the dismissal was a case of genuine redundancy.” [26] I have already determined that Ms Shaw’s application was filed within 21 days of her dismissal taking effect. [27] There was no dispute, and I am satisfied, that Ms Shaw was a person protected from unfair dismissal. Ms Shaw had completed the minimum employment period of six months and the Hospitality Industry (General) Award 2020 (Hospitality Award) covered and applied to Ms Shaw’s employment with Royal Taree. [28] Although Royal Taree’s Form F3 response stated it had nine employees, Mr Limberiou accepted during the determinative conference that Royal Taree was not a “small business” as defined in s.23 of the FW Act, given employees of associated entities are included in the calculation. Mr Limberiou accepted Royal Taree and its associated entities employed well in excess of 15 employees when Ms Shaw was dismissed, and that the reference to nine employees in the Form F3 only included Royal Taree employees and not employees of associated entities. As a result, the SBFDC does not need to be considered in this case. [29] The initial matter that does need to be resolved in relation to Ms Shaw’s application before the merits are considered is “whether the dismissal was a case of genuine redundancy.” [30] The definition of “genuine redundancy" is contained in s.389 of the FW Act, which states: “(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.” Consideration - job no longer to be performed because of operational change -- 6 of 14 -- [2024] FWC 1996 7 [31] Ms Shaw did not contest that her job with Royal Taree as head chef, working at the Royal Hotel Taree, was no longer required to be performed by anyone due to changes in Royal Taree’s operational requirements [32] The evidence establishes that Royal Taree sold the Royal Hotel Taree to Everest Hospitality effective 22 February 2024. The jobs of all Royal Taree’s employees at the Royal Hotel Taree were not required to be performed by anyone employed by Royal Taree from when the sale was completed on 22 February 2024. [33] I find that Ms Shaw’s dismissal satisfied the criterion in s.389(1)(a) of the FW Act. Consideration – compliance with consultation obligations [34] There is no dispute that the consultation obligations in the Hospitality Award were required to be followed by Royal Taree in relation to Ms Shaw’s dismissal, given the reason for dismissal provided by Royal Taree was redundancy. [35] Clause 38 of the Hospitality Award is in the following terms: “38. Consultation about major workplace change 38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must: (a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and (b) discuss with affected employees and their representatives (if any): (i) the introduction of the changes; and (ii) their likely effect on employees; and (iii)measures to avoid or reduce the adverse effects of the changes on employees; and (c) commence discussions as soon as practicable after a definite decision has been made. 38.2 For the purposes of the discussion under clause (a), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including: (a) their nature; and (b) their expected effect on employees; and -- 7 of 14 -- [2024] FWC 1996 8 (c) any other matters likely to affect employees. 38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests. 38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause (a). 38.5 In clause 38.1, significant effects, on employees, includes any of the following: (a) termination of employment; or (b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or (c) loss of, or reduction in, job or promotion opportunities; or (d) loss of, or reduction in, job tenure; or (e) alteration of hours of work; or (f) the need for employees to be retrained or transferred to other work or locations; or (g) job restructuring. 38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.” [36] I find the process followed by Royal Taree in relation to Ms Shaw’s dismissal was the following: (i) Ms Shaw was sent a message on 16 February 2024 about a meeting with the soon-to-be new owners of the Royal Hotel Taree, Everest Hospitality, on 20 February 2024.1 (ii) On 19 February 2024, Mr Limberiou wrote to Ms Shaw to provide formal notice of a consultation process regarding major workplace change. The letter confirmed the sale of the Royal Hotel Taree and invited Ms Shaw to attend a meeting on 20 February 2024. The letter advised Ms Shaw that potential impacts of the major change were that she may transfer to employment with the new owners and that her employment may be made redundant.2 (iii)Ms Shaw attended a meeting with representatives of Everest Hospitality at 10am on 20 February 2024. Everest Hospitality indicated it did not intend to offer permanent employment to any current employees but offered Ms Shaw casual work. Ms Shaw declined that offer.3 -- 8 of 14 -- [2024] FWC 1996 9 (iv) Ms Shaw attended a meeting with Mr Limberiou and Mr Overvliet at 2pm on 20 February 2024 to discuss the major workplace change. Mr Leeder attended the meeting to support Ms Shaw. Ms Shaw raised during this meeting that Mr Overvliet had promised she could return to working at the Manning River Hotel after the sale.4 (v) On 21 February 2024, Mr Overvliet wrote to Ms Shaw to provide notice of a meeting on 22 February 2024 where the “outcome” concerning her employment would be communicated. The letter invited Ms Shaw to bring a support person to the meeting.5 (vi) On 22 February 2024, Ms Shaw met with Mr Quinn and Mr Overvliet. Mr Leeder attended the meeting as a support person. Ms Shaw was provided with a termination letter by Mr Quinn at the beginning of the meeting. Mr Leeder raised Mr Overvliet’s promise that Ms Shaw could return to working at the Manning River Hotel. Mr Quinn indicated Mr Overvliet did not have authority to make that type of promise.6 [37] Although the consultation process was conducted in a much shorter period than would preferably be the case, I am satisfied that this is explained by the lengthy process in finalising the sale of the Royal Hotel Taree and that Royal Taree acted promptly as soon as the sale was finally confirmed. It was only when the details of the sale were finalised that the definite decision to implement the workplace change was made by Royal Taree which triggered the consultation obligations in clause 38 of the Hospitality Award. [38] I am satisfied that the steps taken by Royal Taree mean they complied with the consultation obligations in the Hospitality Award. I find that Ms Shaw’s dismissal satisfied the criterion in s.389(1)(b) of the FW Act. Consideration – redeployment [39] Ms Shaw’s primary argument in response to Royal Taree’s jurisdictional objection is that it was reasonable for her to be redeployed to her previous position as a chef at the Manning River Hotel. [40] In Helensburgh Coal, the plurality judgment stated the following concerning the reasonable redeployment exclusion, which appears in s.389(2) of the FW Act and has the potential to negate what would otherwise be a “genuine redundancy”: “There can be little doubt that s 389 of the FW Act—and, more broadly, the significance of “genuine redundancy” to s 385(d)—was intended to narrow the circumstances in which an employee might be said to have been “unfairly dismissed”; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a “case of genuine redundancy” is immune from relief under Pt 3-2. That is so even if it might unambiguously qualify as “harsh, unjust or unreasonable”. There is, then, some force to the applicant’s contention. The proper construction of s 389(2) of the FW Act will be one that takes account of the facilitative character of the immunity that is inherent in s 385(d) of the FW Act. -- 9 of 14 -- [2024] FWC 1996 10 That immunity, however, is not absolute. Indeed, s 389(2) serves unambiguously to qualify it and it is the scope of that qualification, rather than the immunity itself, that falls to be construed. That task begins and ends with an analysis of the words in which the qualification is expressed: Alcan at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 374 at [37] (Gageler J). On any view, they contemplate a qualification of some width: specifically, redeployment that “in all [of] the circumstances” would have been “reasonable”. Those words do not appear in s 389(1) of the FW Act. A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer’s enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither “in all [of] the circumstances” or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice. Section 389(2), by contrast, requires that the possibility of redeployment should be assessed according to what “would have been” reasonable. That necessarily envisages some analysis of the measures that an employer could have taken in order to redeploy an otherwise redundant employee. In its proper context, “redeployed” can only refer to the prospect that an otherwise redundant employee might be taken from a position no longer required and deployed to the discharge of other tasks. If, in a given case, there were measures that could have been taken and which, in all of the circumstances, could reasonably have led to redeployment, that will suffice to engage the exemption to the immunity. Given the undeniable width of the text in which the exemption is couched, there is no reason to excise from “all [of] the circumstances” the possibility that an employer might free up work for its employees by reducing its reliance upon external providers. The existence of that possibility in any given case is a circumstance that is capable of informing whether redeployment “would have been reasonable”.”7 [41] Ms Shaw and Mr Leeder gave evidence that Mr Overvliet stated during a meeting on around 30 July 2023 that Ms Shaw’s move to the Royal Hotel Taree was temporary to help deal with the sacking of the previous head chef, and that Ms Shaw could subsequently return to the Manning River Hotel.8 Mr Overvliet denied stating this in his witness statement and during cross-examination. [42] Ms Shaw also relied on a text message she received from Mr Overvliet on 24 November 2023, which was during a period that Ms Shaw was stood down due to equipment failure in the kitchen at the Royal Hotel Taree. Ms Shaw sent a message to Mr Overvliet asking: “Do I have a job when the Royal changes hands?” Mr Overvliet replied: “You’ve just been stood down due to equipment failure in the kitchen and our obligation to WHS for our employees. This has nothing to do with your role at the Royal or in the future. I’ve stated before you’ll have a job when the Royal changes hands. We’ll have everything sorted by the 11th and hope to see you back then.” Mr Overvliet gave evidence that his message was “focussed on issues concerning the closure of the kitchen” and that he “erred in providing the applicant any assurances of employment after -- 10 of 14 -- [2024] FWC 1996 11 the sale of the business. Furthermore, he did not have the requisite authority to make such a decision.”9 [43] Given the competing evidence about what was said during the meeting between Ms Shaw, Mr Leeder and Mr Overvliet on around 30 July 2023, I consider Ms Shaw’s contract of employment with Royal Taree to be the most reliable evidence. The importance of approaching fact-finding based on the contemporaneous documentary record and objective circumstances was described by Lee J in Transport Workers' Union v Qantas (No. 1).10 There is no indication in Ms Shaw’s contract of employment that her employment with Royal Taree was temporary. The contract clearly refers to full-time “ongoing” employment.11 There is no reference in the contract to Ms Shaw being entitled to return to the Manning River Hotel following the sale of the Royal Hotel Taree. There is also considerable doubt regarding whether Mr Overvliet could have made a binding verbal commitment during the meeting in circumstances where a detailed contract was subsequently agreed by the parties. The background section of the contract states it sets out the “current terms and conditions” of Ms Shaw’s employment. Mr Parley also provided evidence that he always understood Ms Shaw’s transfer to Royal Taree was permanent and he was managing the Royal Hotel Taree when Ms Shaw commenced employment with Royal Taree. [44] Having considered all the evidence, I am not satisfied that Ms Shaw had a legal entitlement to return to employment with Manning River at the Manning River Hotel when her employment with Royal Taree ended based on her meeting with Mr Overvliet on around 30 July 2023. I am also not satisfied that a clear verbal commitment to that effect was provided by Mr Overvliet to Ms Shaw during the meeting, primarily because that is inconsistent with the terms of the employment contract that was subsequently signed by both parties. [45] Mr Overvliet claims he made an error when he sent a message to Ms Shaw on 24 November 2023 which unequivocally stated: “you’ll have a job when the Royal changes hands.” Having considered all the evidence, I am not satisfied that Mr Overvliet’s message was referring to Ms Shaw returning to employment at the Manning River Hotel if her employment with Royal Taree ended. There is no reference to the Manning River Hotel in the message. Further, I accept Mr Quinn’s evidence that historically when the group have sold hotels, the new purchaser has offered employment to existing employees. I consider it is reasonable to read Mr Overvliet’s message as a reference to him assuming the sale would not result in Ms Shaw being unemployed because she would be engaged by the new owner. [46] I do not consider Mr Overvliet’s message provides sufficient evidence to conclude Ms Shaw had a legal entitlement to return to employment with the Manning River Hotel if her employment with Royal Taree was to end. I am also not satisfied that Mr Overvliet’s message constitutes a clear commitment to that effect. [47] Given my conclusions above, I do not need to determine whether Mr Overvliet had authority to decide that Ms Shaw could return to working at the Manning River Hotel after the sale of the Royal Taree Hotel. Mr Quinn was adamant that he was the only person to make that type of decision. That is consistent with Ms Shaw’s contract with Manning River, which was signed by Mr Quinn as the authorised representative of Manning River. However, Mr Parley was apparently authorised to sign Ms Shaw’s contract with Royal Taree and Mr Overvliet signed Ms Shaw’s termination letter. Ms Shaw also led evidence to show Mr Overvliet is a -- 11 of 14 -- [2024] FWC 1996 12 director and shareholder of Manning River. If the evidence had been clearer about a commitment being provided to Ms Shaw by Mr Overvliet, it is unlikely I would have concluded it should be disregarded because of a lack of authority. [48] Although I am not satisfied Ms Shaw had a legal entitlement to return to working at Manning River Hotel or that Ms Shaw received a clear commitment from Mr Overvliet to that effect, I do consider Mr Overvliet’s message is relevant to the overall assessment of whether it “would have been reasonable in all the circumstances” for Ms Shaw to be redeployed. Ms Shaw would have understood Mr Shaw’s message as a clear indication the group would find a role for her at one of its facilities. There was a logical basis for that position given Royal Taree and its associated entities operate the Manning River Hotel and the Old Bar Tavern, and both facilities have kitchens where Ms Shaw could potentially work. I consider Mr Overvliet’s message to be a factor that weighs in favour of finding it would have been reasonable for Ms Shaw to be redeployed. [49] However, on the other hand, Mr Quinn presented as a credible witness, and he was adamant that there were no roles that Ms Shaw could have been redeployed to at the time of dismissal. Mr Quinn stated that Mr Hopton’s position as sous chef at the Manning River Hotel had not been replaced when Mr Hopton was appointed as the head chef at the Old Bar Tavern in December 2023. Mr Quinn stated there were no available roles at either facility when Ms Shaw was dismissed. Mr Overvliet also gave evidence that there were no available full-time chef roles in the region.12 [50] While Ms Shaw did lead evidence that Mr Bourke commenced working in the kitchen at the Manning River Hotel in late April or early May 2024,13 Mr Quinn and Mr Overvliet confirmed this was a casual role. Ms Shaw was offered casual employment with Everest Hospitality but declined the offer. I do not consider it would have been reasonable for Ms Shaw to be redeployed into a casual role and in any event consider that would constitute new casual employment as opposed to redeployment. [51] Ms Shaw also relied upon a job advertisement dated 11 March 2024 for a Bar/Gaming Attendant role at the Manning River Hotel and a screenshot which refers to “Join our Team” content for the Old Bar Tavern as evidence that she could have reasonably been redeployed. I do not consider this evidence is sufficient to conclude it would have been reasonable for Ms Shaw to be redeployed to the Manning River Hotel or the Old Bar Tavern, given Mr Quinn and Mr Overvliet’s evidence to the contrary. Further, there is no evidence that there was a full-time role that Ms Shaw could have been redeployed into at either facility. As stated above, I do not consider commencing in a casual role would constitute redeployment from a full-time position. [52] Having considered all the evidence and submissions, I am not satisfied it would have been reasonable for Ms Shaw to be redeployed within Royal Taree’s enterprise or an associated entity’s enterprise. [53] As a result, the exclusion from the definition of a “genuine redundancy” that appears in s.389(2) of the FW Act is not applicable in this case. Conclusion – genuine redundancy -- 12 of 14 -- [2024] FWC 1996 13 [54] I have determined that Ms Shaw’s dismissal constitutes a “genuine redundancy” within the meaning of s.389(1) of the FW Act and that the exclusion regarding reasonable redeployment in s.389(2) of the FW Act is not applicable. [55] It follows that Ms Shaw has not been “unfairly dismissed” within the meaning of s.385 of the FW Act and Royal Taree’s jurisdictional objection is upheld. [56] I note that Mr Quinn admitted referring to “performance management” being an option that other businesses may have utilised to end Ms Shaw’s employment, as opposed to implementing a redundancy and making a severance payment, during the meeting on 22 February 2024. Ms Shaw and Mr Leeder stated Mr Quinn described “performance management” as what would occur if Ms Shaw contested the redundancy. On either of the accounts, what Mr Quinn stated was inappropriate and regrettable. That is particularly the case given Ms Shaw was pregnant at the time and broke down crying when she was told of the dismissal.14 Regardless of what Mr Quinn has experienced with other businesses, there is no basis to refer to performance management in a discussion about a job being made redundant through changes in operational requirements and through no fault of the employee. Mr Quinn is clearly a successful businessman, it would be reasonable for him to take some action to remedy what occurred, potentially having regard to a resolution Royal Taree previously proposed to Ms Shaw. [57] Ms Shaw’s unfair dismissal application is dismissed. COMMISSIONER Appearances: Ms Shaw representing herself with assistance from Mr Leeder. Mr Limberiou on behalf of Royal Taree. Determinative conference details: 2024. Sydney (by video via Microsoft Teams). 16 July. Printed by authority of the Commonwealth Government Printer <PR777600> -- 13 of 14 -- [2024] FWC 1996 14 1 Exhibit A1, page 15 of the Digital Hearing Book (‘DHB’). 2 Exhibit R4. 3 Exhibit A1, page 15 of the DHB. 4 Exhibit R1, page 15 of the DHB. 5 Exhibit R3. 6 Exhibit A3. 7 Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, Katzmann and Snaden JJ at [55] to [60]. 8 Exhibits A1 and A3. 9 Exhibit R8. 10 Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873 [16] and [17]. 11 Exhibit R2. 12 Exhibit R8. 13 Exhibit A2, page 42 of the DHB. 14 Exhibit A3. -- 14 of 14 --