UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00605

DELIVERED : wednesday, 1 december 2021

FILE NO. : U 87 OF 2020

Applicant

AND

Parkinson's Western Australia Inc.

Respondent

CatchWords : Termination of employment – Harsh, oppressive and unfair dismissal – Application referred outside of 28 day limit – Relevant principles applied – Commission satisfied applying principles that discretion should not be exercised – Acceptance of referral out of time not granted

Legislation : Industrial Relations Act 1979 (WA)

  Minimum Conditions of Employment Act 1993 (WA)

  Fair Work Act 2009 (Cth)

Result : Application not accepted out of time

Representation:

Applicant : Mr C Palmer (as agent)

Respondent : Mr P Goddard (of counsel)

Case(s) referred to in reasons:

Aboriginal Legal Service of Western Australia Inc v Lawrence No. 2 [2008] WASCA 254; (2008) 89 WAIG 243; 178 IR 168

Amalgamated Metal Workers and Shipwrights Union of Western Australia v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733

Bankstown Handicapped Children’s Centre Association Inc v Hillman & Anor [2010] FCAFC 11

Byrne v Australian Airlines (1995) 61 IR 32

Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98; (1992) 73 WAIG 220

Gilmore v Cecil Bros and Ors (1996) 76 WAIG 4434

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Malik v Paul Albert, Director General Department of Education [2004] WASCA 51; (2004) 84 WAIG 683

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Termination Change and Redundancy General Order [2005] WAIRC 01715; (2005) 85 WAIG 1667

Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385

WA Access Pty Ltd v Vaughan (2000) 81 WAIG 373

Reasons for Decision

1         Mrs Palmer claims that she was harshly and unfairly dismissed from her employment and seeks an order from the Western Australian Industrial Relations Commission (Commission) for the maximum compensation and for the Chief Executive Officer (CEO) of the respondent to receive training in supporting staff through the process of restructuring and redundancy and for this to be on the public record.  Mrs Palmer asserts that the decision to abolish her position and make her redundant was harsh and unfair because the decision was taken before she was consulted, the redundancy was not genuine, and the implementation of the redundancy was rushed and chaotic.  Mrs Palmer contends that she ought to have been offered JobKeeper like other employees of the organisation.

2         The respondent, Parkinson’s Western Australia Incorporated (Parkinson’s) oppose the application and contend that the position held by Mrs Palmer was abolished for business and operational reasons and the process of implementing the consequential redundancy was not harsh nor unfair.  Parkinson’s assert that it was not appropriate to continue to engage Mrs Palmer under the JobKeeper assistance scheme because it did not intend her position would continue.  Parkinson’s assert that Mrs Palmer’s claim has been made outside of the 28-day limit provided for in the Industrial Relations Act 1979 (WA) (IR Act) and submit that the Commission ought to exercise its discretion and decline to accept the application out of time.

Background

3         Mrs Palmer was employed as a Support Programs Coordinator by Parkinson’s from 4 February 2013 until 17 April 2020.  Mrs Palmer managed social events and programs for the organisation’s beneficiaries and worked 17.5 hours per week in the months prior to her dismissal.  Mrs Palmer was employed under the Social and Community Services (Western Australia) Interim Award 2011 (Award).

4         In late March 2020 Parkinson’s decided to cease the activity and support programs managed by Mrs Palmer because of the restrictions on movements and activities imposed by the state government to control the spread of COVID-19.

5         On 26 March 2020 the Parkinson’s CEO discussed some possible options considering the cessation of activity and support programs with Mrs Palmer including standing down from her employment, reducing hours or taking annual leave.  During the following eleven days there were several email exchanges between them.  The emails refer to Mrs Palmer’s circumstances at the time, options for managing the consequences of the state government community health measures and work tasks.  The emails conclude with arrangements to meet on 7 April 2020.

6         On 2 April 2020 the CEO emailed all employees with a request to reduce hours and use one hour of annual leave for each day worked.  On 6 April 2020 the CEO emailed all employees confirming the email of 2 April 2020.  Mrs Palmer did not receive the two emails.

7         On 7 April 2020 the CEO and Mrs Palmer met, a member of Parkinson’s Board was also in attendance.  The CEO informed Mrs Palmer that consideration was being given to abolishing the position of Support Programs Coordinator.  Mrs Palmer was invited to meet the following day to discuss the potential redundancy, any suggestions to avoid the redundancy, possible alternate positions to which she may be redeployed, impact on her and any other matters.  Mrs Palmer was advised she may bring a support person or representative to the meeting.  The Manager handed Mrs Palmer a letter dated 7 April 2020 confirming the information provided to her at the meeting.

8         Later that day Mrs Palmer requested that the meeting scheduled for the following day, 8 April 2020, be postponed because of the severity of the situation and to provide her an opportunity to digest and consider alternatives.

9         The meeting was held on 15 April 2020 at which the CEO provided an overview of the situation and invited comments and proposals.  Mrs Palmer was informed that following a review of the organisation the CEO was not able to identify an alternative position to which she may be redeployed.  Mrs Palmer was accompanied by her husband at the meeting.

10      On 16 April 2020 the CEO telephoned Mrs Palmer to inform her that the matters discussed at the meeting had been considered however the decision was to confirm that her position would be made redundant effective from 17 April 2020.  The CEO confirmed this in writing to Mrs Palmer on 16 April 2020.  Mrs Palmer was paid five weeks’ pay in lieu of notice and 13 weeks’ severance pay, accrued annual leave and pro-rata long service leave.

11      On 8 May 2020 Mrs Palmer applied to the Fair Work Commission (FWC) claiming she was unfairly dismissed.

12      On 26 May 2020 Parkinson’s filed its response with the FWC opposing the claim and notifying that it had a jurisdictional objection on the basis that it is not a national system employer, and the IR Act applied to Mrs Palmer’s employment.

13      On 29 June 2020 the applicant applied to this Commission pursuant to s 29(1)(b)(i) seeking an order for compensation, mandatory training for the CEO and an apology on the ‘public record’.

14      Parkinson’s objects to the Commission accepting the application out of time because the application was not filed within 28 days as required by s 29(2) of the IR Act.  Mrs Palmer’s application is 45 days beyond the time limit.

What I Must Decide

15      Whether it would be unfair to Mrs Palmer to not accept her application for unfair dismissal.

Principles

16      Section 29(2) of the IR Act sets a limit on the time for an employee to apply to the Commission for a remedy of an unfair dismissal.  The Commission may accept an unfair dismissal claim after the limit if it would be unfair not to do so.

17      The power to extend time is found in s 29(3) of the IR Act as follows:

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.

18      The Western Australian Industrial Appeal Court, in Malik v Paul Albert, Director General, Department of Education [2004] WASCA 51; (2004) 84 WAIG 683 set out the tests to be applied for whether an extension of time is to be granted, these are as follows:  The reasons for the delay, any action taken by the applicant to contest the termination other than by applying under the IR Act, the prejudice to the respondent, including prejudice caused by the delay.  The mere absence of prejudice to the respondent is not sufficient to grant an extension of time.  The merits of the substantive application and fairness between the applicant and other persons in a like position are relevant considerations.  The Commission takes account of fairness not just to the applicant but also to the respondent.

Application

19      In this matter I have considered the criteria set out by the Industrial Appeal Court in Malik:

Reasons for the delay

20      Section 29(3) of the IR Act is not an extension of time provision:  An applicant must file within 28 days and there is no jurisdiction to accept an application out of time unless the Commission exercises its discretion under s 29(3) of the IR Act to accept such a referral.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

21      On 26 May 2020 Parkinson’s filed a response to Mrs Palmer’s unfair dismissal claim in the FWC and Parkinson’s asserted that the FWC did not have the jurisdiction to consider her claim because it is not a national system employer and not subject to the Fair Work Act 2009 (Cth).  Parkinson’s contends that Mrs Palmer ought to have made her application to this Commission as soon as she became aware that the FWC did not have jurisdiction.

22      Mrs Palmer’s evidence is that she sought advice from a legal practitioner and acted consistent with the advice that she ought to engage in the conciliation process before the FWC as there was the potential for an agreement to be reached.  Mrs Palmer says she relied on the statement that Parkinson’s was happy to proceed to conciliation and believed it would be an honest and open dialogue.

23      A conciliation conference was held on 25 June 2020.  The original date for the conference was delayed by ten days because the FWC conciliation officer was unwell.  At the conference the resolution proposed by Parkinson’s was not acceptable to Mrs Palmer.  At the conclusion of the conciliation conference the FWC conciliator encouraged her to consider her position over the weekend.  On 29 June 2020 Mrs Palmer discontinued her claim in the FWC.

24      On 29 June 2020, Mrs Palmer commenced her application for unfair dismissal in this Commission.

25      Mrs Palmer contends that the time delays were out of her control.  Mrs Palmer claims that by Parkinson’s agreeing to conciliation in the FWC they were seeking to delay and/or nullify any potential claim in this Commission.

26      I accept that, generally, where a party to proceedings is represented by legal practitioners or obtains advice from legal practitioners their standing will allow them to recognise and deal with this issue when it might not be understood by an unrepresented litigant.

27      In this case, where the respondent is a not for profit incorporated body, not only can there be a significant difficulty in making that assessment based upon the correct identification of the employer, the decisions of the Industrial Appeal Court in Aboriginal Legal Service of Western Australia Inc v Lawrence No. 2 [2008] WASCA 254; (2008) 89 WAIG 243; 178 IR 168, contrasted with the Full Court of the Federal Court in Bankstown Handicapped Children’s Centre Association Inc v Hillman & Anor [2010] FCAFC 11, show that such an assessment can sometimes be uncertain even where a party to proceedings is represented by legal practitioners. 

28      However, in cases where an applicant has taken advice and, indeed, continues to take advice about jurisdiction and time limits and there is no other apparent impediment on the evidence to the commencement of proceedings to preserve the time which are important and must be done, there needs to be an exceptionally good reason for delays beyond the 28-day time limit.

29      There is no legal reason why Mrs Palmer could not have filed a claim in this Commission at any time after the issue of jurisdiction was first raised.  Section 29AA(1) prevents the Commission from determining a claim of unfair dismissal if the dismissed employee has made a claim with the FWC for relief in respect of the termination of that employment.  It does not prevent the dismissed employee from filing the claim.

30      Mrs Palmer made informed and deliberate decisions about the conduct of her claim.  Mrs Palmer continued to engage in conciliation in the FWC with the benefit of legal advice until she concluded the outcome was not a positive one for her.  At that time Mrs Palmer decided to discontinue with her claim and start a fresh claim in this Commission.  The delay was not caused by confusion over jurisdiction rather by the deliberate decision to continue with a claim and should that pathway not be fruitful retain an alternate pathway.

31      I do not accept Mrs Palmer’s assertion that Parkinson’s sought to extend the time taken in the FWC to create hurdles for her in a claim before this Commission.  Mrs Palmer was in control of the decision to make an application to this Commission.  Parkinson’s was not.  Parkinson’s had raised the issue of jurisdiction, but it was for Mrs Palmer to assess this issue and determine her response to the question of jurisdiction.  There was no impediment to making a claim to this Commission.

32      It cannot be said to be unfair to Mrs Palmer to not accept her application because she made a deliberate decision, informed by legal advice, to continue to progress her claim with the FWC and not make an application to this Commission.

33      This criterion is not the only one that requires consideration to decide whether to accept the claim out of time.

Action Taken to Contest the Dismissal

34      I find that Mrs Palmer had taken action to contest the dismissal other than by this claim.  Mrs Palmer made an application to the FWC on 8 May 2020 and actively pursued that claim until it was discontinued.  Parkinson’s knew 21 days following the dismissal that Mrs Palmer was contesting her dismissal.  This lessens the consequences for Parkinson’s of the claim having been lodged out of time.

Prejudice to Respondent

35      Parkinson’s submits that there is little prejudice to them arising from the delay.  I find that this is the case and note that absence of prejudice to a respondent is not a sufficient basis to grant an extension of time.

Merits of the Case

36      In deciding whether it would be unfair not to accept the applicant’s claim out of time, it is necessary to make some assessment of the merits.  It would not be unfair to dismiss a claim that was filed out of time if it could not succeed.  An assessment of the merits need only be ‘fairly rough and ready’:  Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [9] (Brennan CJ & McHugh J).

37      In this matter the conduct of the case by the applicant was comprehensive.  Mrs Palmer gave evidence on her own behalf.  Mrs Palmer’s husband, Mr Palmer, gave evidence as he had participated in meetings concerning the redundancy as a support person for Mrs Palmer.

38      Parkinson’s CEO gave evidence on behalf of the employer.  Mrs Palmer’s agent conducted an extensive cross examination of this witness.

39      The test for determining whether a dismissal is unfair or not is well settled.  The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant (see Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385).  The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair.  Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined.  A dismissal for a valid reason within the meaning of the IR Act may still be unfair if, for example, it is affected in a manner which is unfair.  However, terminating an employee in a manner which is procedurally irregular may not mean the dismissal is unfair (see Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne v Australian Airlines (1995) 61 IR 32).  In Shire of Esperance v Mouritz, Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.

40      Mrs Palmer claims the termination of her employment was not the result of a genuine redundancy and asserts she was dismissed because she consoled another employee to the displeasure of the CEO.  Mrs Palmer claims the decision to abolish her position and make her redundant was deliberately rushed, chaotic and flawed and therefore was not a genuine redundancy, and her dismissal harsh and unfair.

41      Parkinson’s contend that the position Mrs Palmer held was abolished because the organisation needed to reduce expenses.  The position occupied was not core business and the organisation could no longer sustain the losses being incurred by the activities the position supported and consequentially Mrs Palmer was made redundant.

42      Redundancy is defined in the Termination, Change and Redundancy General Order [2005] WAIRC 01715; (2005) 85 WAIG 1667) as occurring ‘where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone’.  When an employee’s position has been abolished and that employee is terminated due to their position being made redundant this is a sufficient reason for dismissal:  Amalgamated Metal Workers and Shipwrights Union of Western Australia v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733.

43      The circumstances in which a redundancy will occur include the abolition of the job in question, but redundancy may also occur when a workforce is reduced because there is labour in excess of that reasonably required to perform the work which is the employer's business:  Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98; (1992) 73 WAIG 220 per Franklyn J at 224.

44      The Minimum Conditions of Employment Act 1993 (WA) (MCE Act) is implied into an employee’s contract of employment.  A failure to comply with the mandatory requirements of Part 5 of the MCE Act is a factor to be taken into account in deciding whether a dismissal is unfair (see Gilmore v Cecil Bros and Ors (1996) 76 WAIG 4434 (4445); WA Access Pty Ltd v Vaughan (2000) 81 WAIG 373 (378)).

45      The relevant sections of the MCE Act read as follows:

Part 5 — Minimum conditions for employment changes with significant effect, and redundancy

40. Terms used

(1) In this Part —

employee does not include a casual employee or an apprentice;

redundant means being no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person.

(2) For the purposes of this Part, an action of an employer has a significant effect on an employee if —

(a) there is to be a major change in the —

(i) composition, operation or size of; or

(ii) skills required in,

the employer’s work‑force that will affect the employee; or

(b) there is to be elimination or reduction of —

(i) a job opportunity; or

(ii) a promotion opportunity; or

(iii) job tenure,

for the employee; or

(c) the hours of the employee’s work are to significantly increase or decrease; or

(d) the employee is to be required to be retrained; or

(e) the employee is to be required to transfer to another job or work location; or

(f) the employee’s job is to be restructured.

41. Employee to be informed

(1) Where an employer has decided to —

(a) take action that is likely to have a significant effect on an employee; or

(b) make an employee redundant,

the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

(2) The matters to be discussed are —

(a) the likely effects of the action or the redundancy in respect of the employee; and

(b) measures that may be taken by the employee or the employer to avoid or minimize a significant effect,

as the case requires.

42. Employer not bound to disclose prejudicial information

Nothing in this Act requires an employer, when providing information or holding a discussion under section 41(1) to disclose information that may seriously harm —

(a) the employer’s business undertaking; or

(b) the employer’s interest in the carrying on, or disposition, of the business undertaking.

43. Paid leave for job interviews, entitlement to

(1) An employee, other than a seasonal worker who has been informed that he or she has been, or will be, made redundant is entitled to paid leave of up to 8 hours for the purpose of being interviewed for further employment.

(2) The 8 hours need not be consecutive.

(3) An employee who claims to be entitled to paid leave under subsection (1) is to provide to the employer evidence that would satisfy a reasonable person of the entitlement.

(4) Payment for leave under subsection (1) is to be made in accordance with section 18.

46      Clause 12 of the Social and Community Services (Western Australia) Interim Award 2011 sets out obligations on the employer where a termination occurs because of the redundancy:

12.10 Redundancy disputes

12.10.1 Paragraphs 12.10.2 and 12.10.3 impose additional obligations on an employer where an employer contemplates termination of employment due to redundancy and a dispute arises (a redundancy dispute). These additional obligations do not apply to employers who employ fewer than 15 employees.

12.10.2 Where a redundancy dispute arises, and if it has not already done so, an employer must provide affected employees and the relevant union or unions (if requested by any affected employee) in good time, with relevant information including:

(1) the reasons for any proposed redundancy;

(2) the number and categories of workers likely to be affected; and

(3) the period over which any proposed redundancies are intended to be carried out.

12.10.3 Where a redundancy dispute arises and discussions occur in accordance with this clause the employer will, as early as possible, consult on measures taken to avert or to minimise any proposed redundancies and measures to mitigate the adverse affects of any proposed redundancies on the employees concerned.

Was the Redundancy Genuine?

47      Mrs Palmer contends that it was unfair to make her redundant because it was open to Parkinson’s to retain her position and apply for the JobKeeper subsidy.  Mrs Palmer acknowledges the organisation was running at a loss for four financial years however contends that loss realised by the activities program in 2020 was less than that of 2018.  In these circumstances Mrs Palmer questions the decision to abolish her position at that time.  Mrs Palmer asserts that it is unfair to her to abolish the position at a time when the loss was less than that of previous years.  Parkinson’s submits that the organisation was running at an overall loss and the activities program was experiencing significant losses.  Parkinson’s evidence is that the activities and support programs are not the core business of the organisation.

48      Mrs Palmer asserts that once in receipt of her application to the FWC, Parkinson’s changed the reasons for making her position redundant.  The letter dated 7 April 2020 refers to the possibility of an organisational restructure because of the coronavirus outbreak.  The letter further states that these recent events have resulted in a significant downturn in business affecting the operations.  The CEO acknowledges that at the initial discussion with Mrs Palmer the option of standing down was discussed.  Following this discussion, the CEO reviewed the organisation’s financial information in early April and it became evident to her that it was not possible to continue the activities program in its current form for the foreseeable future.  The CEO gave evidence that the activity programs were suddenly stopped because of the COVID-19 measures.  The CEO says there was a degree of overlap between the sudden halt to the activity programs and her considerations of the longer-term future for managing the programs.

49      I accept that Parkinson’s determined that the Support Programs Coordinator position would be made redundant because the organisation wished to or needed to reduce its expenses.  The role that Mrs Palmer undertook was identified because it was not core business for the organisation.  I find that Parkinson’s decided that it was not feasible to continue to maintain the position of the Support Programs Coordinator in the face of financial losses of the programs and overall losses of the organisation as a credible explanation for the selection of the position as one to be made redundant.

50      Mrs Palmer contends that her dismissal was not a genuine redundancy because Parkinson’s had an ulterior motive.  Mrs Palmer asserts that the CEO felt her management and leadership skills were being criticised when Mrs Palmer consoled another employee.  Mrs Palmer says that this was the real reason for the decision to dismiss her.  The CEO gave evidence that she was not aware that Mrs Palmer had consoled another employee.

51      The assertion that there was an ulterior motive is not supported by evidence and I find this claim has not been made out.

52      Mrs Palmer says that the CEO’s suggestion that Parkinson’s access JobKeeper ought to have been taken up.  Mrs Palmer contends that Parkinson’s accessed JobKeeper for all other employees and it was unfair to not offer her this arrangement.  The CEO gave evidence that it would not be feasible nor appropriate to apply for JobKeeper in circumstances where Parkinson’s had decided that the position would not be continued.  The CEO gave evidence that the activity and support programs continue however these are managed by volunteers with some support from herself.

53      I find the decision to abolish the position and the decision to make Mrs Palmer redundant genuine.  As in Australian Shipbuilding Industries I find that Parkinson’s made a decision that the job being done by Mrs Palmer would no longer be done and the redundancy is genuine.

Was the Process Harsh, Oppressive or Unfair?

54      Mrs Palmer claims that the way in which her redundancy was handled was harsh and unfair.  Mrs Palmer says that Parkinson’s had already decided to abolish her position before she was first informed of the decision and that it was harsh and unfair not to inform her earlier.  Mrs Palmer asserts that the decision was taken before the CEO met with her.  Mrs Palmer gave evidence that she was omitted from the occupational health and safety list prepared prior to her being informed that her position was at risk because the CEO had already decided to make Mrs Palmer redundant before consultation with her and that this was unfair.

55      Mrs Palmer is critical of the process because she says it was not fair to advise her at a meeting that the organisation was considering making her redundant.  Mrs Palmer says she ought to have been initially advised by email or contacted by telephone and this would have provided her with an opportunity to consider alternatives and other options.  Mrs Palmer says that she was ‘blind sided’ at the meeting on 7 April 2020 and this was unfair.

56      The CEO agrees that Mrs Palmer was not included on the health and safety list because the future of her position was under consideration.  The CEO says she requested Mrs Palmer to meet in her office as she thought she ought to directly invite Mrs Palmer to the meeting scheduled for the following day to discuss with Mrs Palmer the decision to make her position redundant.  The CEO gave evidence that she believed that it was preferable to personally talk to Mrs Palmer and give her the letter setting out the purpose of the meeting the following day than to email her with this information.

57      News that your employer is considering making your job redundant or has decided to abolish your job is usually not positive regardless of the way it is first delivered.  Mrs Palmer was clearly impacted by the news that her job was likely to be abolished.  However, I do not find that the face-to-face meeting on 7 April 2020 to convey this information to Mrs Palmer and invite her to a meeting to discuss the impact on her and any measures to minimize the impact or alternatives was harsh or unfair.

58      The meeting to discuss the impact on Mrs Palmer and alternatives to redundancy, originally scheduled for 8 April 2020, occurred one week later.  This meeting was postponed at the request of Mrs Palmer.  I do not accept Mrs Palmer’s assertions that the CEO sought to ambush, or blind side her by holding a face-to-face meeting to provide her with information and the letter formally notifying that the organisation had decided to abolish her position and wished to discuss the impacts of this decision on her.

59      I do not accept Mrs Palmer’s contention that Parkinson’s was obliged to consult with her before deciding that her position was at risk of redundancy.  Mrs Palmer did not refer to any term of her contract nor any other authority that required Parkinson’s to consult with her before the decision to abolish her position was made.  The MCE Act provides that where an employer has decided to make an employee redundant the employee is entitled to be informed as soon as reasonably practicable after the decision has been made and discuss with the employee the likely effects of the redundancy on the employee and measures that may be taken to minimise the impact of the redundancy on the employee.

60      Neither is Parkinson’s obliged by the terms of the Award to engage Mrs Palmer in the deliberations concerning the making of a decision to abolish a position.  The language of the Award states ‘when an employer has made a definite decision’.  That is the language is that the employer is entitled to decide and having decided is then obliged to discuss with the employee/s concerned the impact of their decision and to consider what the employee has to say about the impact, any alternatives the employee may wish the employer to consider and any other matters.  A decision to abolish the position occupied by Mrs Palmer before informing her does not make her termination harsh nor unfair in and of itself.

61      A review of the evidence of the process implemented following the decision to abolish the Support Programs Coordinator position and make Mrs Palmer redundant does not lead to a conclusion that it was harsh and unfair.  I find that Parkinson’s informed Mrs Palmer about the decision to discontinue the position she held and the consequences for her as soon as practicable as required under the MCE Act.  Mrs Palmer was provided with an opportunity to put the impacts on her and any proposals she had before her employer at the meeting on 15 April 2020.  Mrs Palmer also had the opportunity to put any alternatives to Parkinson’s from 7 April 2020 onwards.  Mrs Palmer did make some suggestions.  Parkinson’s considered the matters raised by Mrs Palmer.  The CEO gave evidence that Mrs Palmer’s skills in accountancy and communication were considered however the staffing levels in these areas of the organisation were at a maximum.  Mrs Palmer’s suggestion that she undertake shopping or other tasks for the organisation’s beneficiaries during the lock down period was also considered.  The CEO gave evidence that these activities were not considered the organisation’s core business and were not feasible.  Unfortunately for Mrs Palmer the alternative proposals were not considered feasible.

62      Mrs Palmer further claims that the process was unfair because it was chaotic.  The evidence suggests that any chaos resulted when initial discussions about options to manage the situation where the functions of her role had ceased because of COVID 19 measures took a significant deviation to become a discussion about her position being made redundant.  Mrs Palmer asserts that she was given different information about the ability to be stood down, access annual leave and/or work under alternative arrangements.  Mrs Palmer asserts that the CEO stated to her that the process had been ‘rash’.

63      The CEO agreed that some information initially provided was corrected when she obtained expert advice on the provisions of the Award and employment regulations.  The CEO acknowledged she raised the possibility of Mrs Palmer being stood down however subsequently identified the terms of the Award precluded this option.  The CEO also agreed that the consideration of the way in which the activity and support programs would be supported did change upon a review of the financial situation.  The CEO agreed that at the time the environment was uncertain given the impact of the mandatory health measures associated with COVID 19.  The CEO acknowledges it was not clear whether Parkinson’s was eligible to access support and assistance packages offered by governments because it is a not-for-profit organisation.   The CEO acknowledges that the information provided to employees, including Mrs Palmer, did change at times as the context in which the organisation operated developed.  Parkinson’s contend that decisions were made on the information available at the time.  The CEO acknowledged that with the benefit of hindsight, access to JobKeeper may have been an option, however this was not known at the time.

64      I do not accept Mrs Palmer’s contentions that the process was chaotic and confused such that it was a harsh or unfair process.  I cannot conclude that the CEO stated to Mrs Palmer that the process had been ‘rash’ because this assertion was not put to the CEO.  Given the context, it is understandable that the changing environment and developing events may have been confusing.  At the time public commentators frequently used the term ‘unprecedented’ to describe the unfolding community health crisis.  Parkinson’s, like many organisations, found their operations were significantly impacted by the measures implemented in response to the COVID 19 health crisis.  At the time, the duration of the community health measures was not known.  Support and assistance packages from State and Commonwealth Governments were being considered and the rules for their access were being worked on.  Changes to employer obligations and employees’ entitlements were being considered by the relevant industrial regulatory authorities.

65      It is not unusual to reflect on past decisions and with the benefit of hindsight reconsider their wisdom or otherwise.  Acquisition of knowledge that was not available at the time does not make a past decision unfair.  In this matter Mrs Palmer has not demonstrated that the decision by Parkinson’s was unfair.  It did not possess knowledge that it deliberately withheld from her and informed her of the knowledge they had at the time.  The CEO’s evidence is that decisions were made on the information before Parkinson’s at the time.  I find this to be the case.  I find that Parkinson’s fulfilled its obligations to inform Mrs Palmer as soon as practicable after a decision was made, provide Mrs Palmer with an opportunity to inform them of the impact of the decision on her and to consider any alternate arrangements that may mitigate the negative impacts.

66      I note that the Award provides for a process of dispute resolution.  There is no evidence that a dispute pursuant to clause 12.10 was raised by Mrs Palmer or the union party to the Award.  Mrs Palmer has not demonstrated that the employer did not comply with the obligations of this sub-clause.  In any event, the evidence before the Commission is that the obligations concerning the provision of information to the affected employee and consideration of measures to minimise the impact had been performed by Parkinson’s.  It is unknown whether the obligation to inform the union party were fulfilled or not.

Conclusion

67      In all these circumstances, I find that it would be inappropriate to accept the application out of time, on the basis that it is unlikely that the applicant is able to demonstrate the merits of her claim such as to enable an extension to do justice between the parties.  So, in the circumstances, the referral out of time will not be accepted.