Unfair Dismissal: Kylie Monks v John Holland Group Pty Ltd

Redundancy requires proper consultation - Kylie Monks v John Holland Group Pty Ltd (U2012/4488) (1 August 2012)

This case concerned a claim of unfair dismissal involving a purported redundancy.  Kylie Monks was employed by John Holland Group Pty Ltd until her employment was terminated on 17 January 2012.  Ms Monks argued that she was unfairly dismissed, whilst the Respondent argued that the dismissal occurred in the context of a genuine redundancy.

Ms Monks commenced employment in 2008 and was offered a permanent position as a personal assistant in 2009.  The Applicant's immediate supervisor, Dr Sims, was promoted in late 2011 and relocated to Sydney.  Despite the invitation to move, the Applicant decided to continue with her replacement supervisor, Ms Stoddart.  No issue arose as to Ms Monks' performance as a personal assistant - in fact, Dr Sims had sought to have her relocate with him.

Ms Stoddart had undertaken a handover during the final six months of 2011 and determined, upon taking the position, that she required an executive assistant rather than a personal assistant.  The Tribunal accepted that an executive assistant required a substantially different skill set, which Ms Monks did not possess.  It also involved a pay increase of $25,000.  In mid December 2011, Ms Stoddart appointed another person as executive assistant at the suggestion of the General Manager.

A meeting was held on 12 January 2012 at which Ms Monks was informed of Ms Stoddart's decision to appoint an executive assistant.  Ms Monks was then invited to take a redundancy package or continue in a six week position with Dr Sims.  Ms Monks was also informed that efforts at redeployment would be made on her behalf, but that if no further position had been found by 28 February 2012, her employment would be terminated.  After taking legal advice, Ms Monks elected to take the redundancy and was terminated on 24 January 2012.

Before Fair Work Australia, Ms Monks argued that she had been unfairly dismissed.  John Holland argued that her termination constituted a genuine redundancy under s. 389.  Fair Work Australia found that  the decision to engage an executive assistant for Ms Stoddart constituted a change to the 'operational requirements' of John Holand.  However, the tribunal found that John Holland did not consult as required under the award.  In particular, the meeting on 12 January 2012 was not consultation as Ms Monks was merely informed of the decision that had been already made and invited to consider the possibility of alternative positions.  Fair Work Australia affirmed the existing authorities that consultation

'is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker'

(at paragraph [36] of the decision).

The tribunal did find, however, that Ms Monks effectively thwarted John Holland's efforts to find an alternative position for her by accepting the redundancy.  The better course for Ms Monks (at least in relation to her unfair dismissal claim) was to accept the six week contract and await the possibility of redeployment.  For this reason, the tribunal held that the dismissal was not harsh, unjust or unreasonable and dismissed Ms Monks' application.

This case outlines the importance for employers who are effecting redundancies to pay full regard to the consultation obligations in awards.  Consultation must involve a genuine openness to the arguments of the union or employee and must be undertaken before a final decision is reached.

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.


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