TERMINATION OF EMPLOYMENT – genuine redundancy – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked as Sales and Business Development Manager – respondent operated a healthcare recruitment and personnel placement business in Australia – respondent raised jurisdictional objection of genuine redundancy – asserted role previously performed by applicant was no longer required due to changes in the operational requirements of business – asserted there was no award or enterprise agreement applicable and despite reasonable attempts was unable to redeploy applicant to another role – applicant contended dismissal was not a case of genuine redundancy on basis of number of other positions available – claimed to be covered by the Clerks Private Sector Award 2010 (the Award) and the real reason of dismissal was that the CEO disliked her – applicant appointed to role of Client, Sales and Business Development Manager and held that position up until dismissal – business was restructured – all staff were sent email from HR department asking to express interest in Defence roles – approximately 23 positions available – meeting held between parties in which respondent asked applicant whether could add value anywhere else in business and termination was only outcome sought by CEO otherwise – told to think about discussion overnight and respond following day – attended meeting next day in which applicant given a termination letter effective that day – applicant contended that redundancy was not genuine on basis that none of the available positions listed in termination letter had ever been discussed – at no time was applicant advised of interest of expression regarding defence positions, consulted of position becoming redundant or given opportunity to explain why should be retained – Commission satisfied that applicant’s job made redundant as no longer required due to operational changes in business – no new employees employed to replace applicant – satisfied that at the time applicant dismissed there were jobs, roles, positions of work which could have been undertaken by applicant – Manager of Defence division at that relevant time gave evidence that applicant could have assisted in setting up Defence division – found not to be a case of genuine redundancy – applicant informed of dismissal one day before – dismissal was harsh given applicant’s personal circumstances and failure to consider redeployment – dismissal unfair – employment relationship irretrievable – ordered respondent to pay applicant compensation in amount of $13,842 in wages and $1,315.38 in superannuation contributions less applicable tax – payment to be made within 21 days of date of decision. Sommer v Healthcare Australia t/a Healthcare Australia
