Worker not given opportunity to respond to any reason related to her capacity
A worker challenged her dismissal arguing employer failed to consult about redundancy and made assumptions she would not accept work at mainland venue without asking her.
The worker contended employer never held direct discussion with her about job being at risk, redeployment opportunities, or her willingness to work as casual when fit, and manager assumed she would not relocate off island.
The employer maintained worker's permanent full-time role no longer required due to hotel renovations reducing bottle shop hours, worker was medically incapacitated unable to lift required weight, and written communications satisfied consultation obligations.
Employment and workplace injury
The worker commenced casual employment on 4 April 2022 as a bottle shop attendant, initially working at the employer's hotel operated on island. In August 2022, she began working at the employer's Dunwich bottle shop in addition to the hotel.
In September 2023, the employer opened a Point Lookout bottle shop and the worker also did shifts there. From March 2024, the worker worked only at the Dunwich bottle shop. She became a permanent full-time employee on 30 July 2024, working only at the Dunwich bottle shop.
On 2 February 2025, the worker injured her back while at work. She reported this to the employer via email before opening hours on 3 February 2025 and completed an incident report via telephone before attending work.
Following her shift, the worker attempted to present to a medical clinic, but the clinic was closed upon her arrival. She then presented to the clinic the following morning.
The worker received a work capacity certificate on 5 February 2025 and presented to a physiotherapist that day. The worker provided her work capacity certificate to the employer and discussed a return-to-work plan with her manager.
She had further medical appointments and received additional work capacity certificates on 12 February, 19 February and 5 March 2025.
The worker had a telephone call with WorkCover on 10 March 2025, during which she was told that the employer's chief financial officer had said that he did not want her back at work until she was fully recovered.
The worker had not had anything to do with the chief financial officer before learning this was said about her to WorkCover. On 17 March 2025, the worker emailed various managers of the employer detailing some of her medical appointments and stated that she was eager to return to work.
Renovation announcement and staff letter
On 19 March 2025, the employer's island staff, including the worker were issued a letter announcing a major renovation set to begin on 1 April 2025, with the project expected to be completed by late 2025.
The letter stated the venue closure would significantly impact staff due to large reduction in total available hours across the venue.
The letter stated: "Where possible, staff will be reassigned to roles within the group's other venues, including the mainland hotel, restaurant and bar, and island bottle shops.
Due to the temporary closure, roles will be affected. Impacted team members will be encouraged to apply for available positions within the company when available and will be given priority for re-employment once the venue reopens."
A group text message was sent to relevant employees on 19 March 2025 stating: "There is no immediate change to the operations of the bottle shop. We may adjust some trading hours, based on demand. We still have Easter trade approaching where we are expecting to still be very busy. I will get next week's roster published today and start making a plan for the following one."
On 20 March 2025, the worker received a work capacity certificate stating that she could carry a load of up to 2kg. She then provided this certificate to her manager the same day in the hope of returning to work as soon as possible.
The worker sent a follow up email to her manager on 25 March 2025. On 31 March 2025, the worker received a redundancy letter from the chief financial officer stating: "As a result of the venue renovations, the full-time position of bottle shop attendant is no longer required. The employer has considered all avenues to find you an alternative position within the enterprise and any associated entities, however there are no suitable positions available at this time."
Manager made assumptions without asking
The general manager stated that management considered redeployment of all affected staff. An option was for employees to be redeployed to the group's mainland venues, however the worker had previously indicated she was not interested in relocating off the island.
The general manager's view was that given the worker's limited availability, geographic preference and medical restrictions, there were no reasonable or safe options for redeployment.
The general manager considered that retaining the worker in the casual pool would have undermined the finality of the restructure and created operational risk while she remained medically unfit and administratively inactive.
The general manager denied that the decision to make the worker's position redundant was based on her WorkCover status or medical condition.
In evidence given during the hearing, the general manager stated that he had minimal contact with the worker during her employment. The general manager consulted with the chief financial officer in relation to the worker's redundancy.
The former wanted to ensure that skilled employees who had lost hours of work from the hotel could gain hours in the bottle shops, and those employees had broader capabilities than the worker. Those capabilities included stock ordering and rostering across the whole business.
Four female employees from the hotel were retained and redeployed into the bottle shops. One of those employees was on a salary while three were casual employees.
The general manager agreed that some of those four employees needed to be trained in the bottle shop. Prior to the hotel closing there had been around 16 casual employees working in the Dunwich bottle shop.
Following the closure, there were only four per week. The worker and another employee had been the only permanent employees working in the various bottle shops and both were made redundant when the hotel closed for renovations. Some casual employees were let go.
Award obligations not reviewed
The general manager stated that all staff received the same communication. He considered that due to the worker's incapacity there was no way of talking to her at the time. During the hearing, the worker stated that she had capacity to attend the hotel for a one-on-one meeting.
The general manager stated that he left it in the hands of head office. The Commissioner inquired of the general manager if he knew of the employer's obligations when considering making an employee redundant.
He stated that he knew that there were responsibilities but could not name them. He stated that he knew that there were responsibilities pursuant to the award, but he did not review the award and simply left it to head office.
With regard to the letter of 19 March 2025, the general manager agreed that the employer had not met its consultation obligations in the award.
He agreed that he did not contact the worker to discuss consultation or redeployment and the first she learned of her role being made redundant was when she received the letter dated 31 March 2025.
With regard to redeployment, he stated that the employer considered that the worker could only lift 2kg to 5kg in weight and that could not be accommodated.
The general manager stated that an employee needed to be able to safely lift a minimum of 15kg as a box of beer was approximately 12kg.
During the hearing, the general manager agreed that he had made an assumption that the worker would not accept work at the mainland venue.
No gaming roles considered
The chief financial officer gave oral evidence as to the duties of the four managerial employees who secured work in the bottle shops during the hotel's renovations.
The chief financial officer agreed that while the worker might not have been able to assist with stock deliveries while incapacitated, if she had been fit, she could have done closing shifts. He agreed that the bottle shops did not receive stock every day.
The Commissioner inquired if the employer and associated entities considered the worker for any roles in the mainland operations, including gaming room attendant. The chief financial officer replied that they were very late finishes, and you needed to have a Responsible Service of Gambling certificate.
The worker responded that she had her certificate. The worker stated that the employer had knowledge that she had her certificate, provided on the commencement of her employment.
She stated if they had asked her in March 2025, she would have reminded them. The chief financial officer conceded that he was not aware the worker had her certificate. The chief financial officer said it was unlikely there were any gaming roles available at the mainland venue in March 2025.
The chief financial officer stated that he did look at the award obligations but considered that the correspondence of 19 March 2025 and 31 March 2025 was sufficient.
The chief financial officer said he would have liked to have invited the worker in for an interview, but she was on WorkCover, and he was told by WorkCover that he could not invite her to an interview to discuss her potential redeployment opportunities.
The chief financial officer stated that if the worker had been redeployed as a casual employee after 31 March 2025 and came back to work when she was fit, it would not be fair on other casual employees.
Consultation obligations not met
The Commissioner found it was well established that dismissal did not ordinarily take effect unless and until it was communicated to the employee.
The Commissioner found the employer made a definite decision to make a major change to the business, terminating two permanent, full-time employees from the bottle shops and ending the employment of many from the hotel and some casual employees from the bottle shops.
The employer's decision had a significant effect on employees, including by the elimination of several positions. It followed that the employer was required to comply with the consultation obligations in the award.
In mid-March 2025, the employer made a definite decision to reduce the number of employees across the island's operations.
The worker was sent the letter of 19 March 2025, informing her that the renovations would have an impact on the team, and the employer would provide support and guidance throughout the process.
The communication suggested that hotel staff would be redeployed, but there was no mention of the worker's role being affected.
It appeared that there were internal discussions between the general manager and chief financial officer about the worker's role being made redundant, but nobody reached out to the worker to communicate with her directly or invite her to a meeting.
No valid reason to dismiss entirely
The Commissioner was satisfied that the employer no longer required the worker's job to be performed by anyone because of changes in the operational requirements of the enterprise.
The Commissioner was of the view, however, that the employer made the decision to dismiss the worker from the employer's employment because of her incapacity.
On the evidence before the Commissioner, there was no consideration to allow the worker some time to recover from her injury. The decision made to dismiss her was simply about the circumstances as they existed in late March 2025.
There was no reason why the employer had to dismiss the worker entirely from her employment.
She had stated, and the Commissioner accepted her evidence, that if a discussion had been held with her, she would have agreed to be converted to casual employment and to resume work when she was cleared fit to do so.
On the evidence before the Commissioner, the casual employees in the bottle shops performing work in March 2025 that were retained were not medically incapacitated. The general manager stated that the worker's lifting restrictions could not be accommodated. It went without saying that the worker could not have been rostered for shifts until such time as she was certified fit for work.
Being able to lift only around 2kg to 5kg in a bottle shop was, unsurprisingly, unable to be accommodated. However, there was no satisfactory explanation for the employer's decision to dismiss her entirely.
The Commissioner was satisfied that there was a valid reason to end the permanent, full-time employment of the worker at the end of March 2025, however there was not a valid reason for the worker to have been dismissed from her employment with the employer. The worker was notified of the reasons for the dismissal in the termination letter dated 31 March 2025.
It was conceded by the employer, and the Commissioner found that the worker was not provided with an opportunity to respond to any reason related to her capacity to have been retained by the employer.
Harsh not to speak with worker at all
The Commissioner was concerned that the chief financial officer gave evidence that the worker could not move pallets of beer on delivery days prior to incurring her injury. There was no basis for the chief financial officer to have made such an unfair and incorrect assumption.
The worker's evidence was accepted that she did, in fact, perform physically strenuous tasks of moving beer cartons. It was disappointing that the general manager assumed the worker would not be interested in performing work at the mainland venue.
A discussion with her would have covered off many topics and likely have led to the worker convincing the employer not to dismiss her entirely from the employer's employment.
The Commissioner considered the fact that nobody bothered to speak with the worker at all to be particularly harsh. The chief financial officer's evidence that WorkCover told him he was not allowed to speak with the worker sounded implausible.
None of the employer's management personnel took the time to read the award obligations. The worker did not even have time to learn that her job was at risk; she was dismissed on 31 March 2025 without any prior notice.
The Commissioner determined the jurisdictional objection was dismissed, and having appropriate regard for the various factors, determined that the worker's dismissal was harsh, unjust and unreasonable.
