Worker claims that it was a 'predetermined' dismissal
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a practice nurse who was dismissed on the basis of redundancy after working at a skin cancer centre for just over a year.
The worker argued that her dismissal was not a genuine redundancy, claiming it lacked substantive justification and was procedurally deficient. She contended that her employer failed to consult properly and had predetermined her dismissal before meeting with her about the alleged redundancy.
The case raised important questions about the genuineness of redundancy decisions and the consultation obligations employers must meet when considering workforce reductions.
Employment background and workplace restructuring
The worker was employed as a practice nurse at a skin cancer centre in May 2023 by a medical company that operated multiple clinics. The company's operations included a main general practice, another general practice location, two rest homes, and the skin cancer centre where the worker was based.
The worker was the only permanent practice nurse at the skin clinic, working between 46 and 50 hours per fortnight to provide nursing support services to the treating physician.
Her employment agreement stated that while her primary location was the skin clinic, she could be required to work from any of the employer's business locations.
In the weeks leading up to May 2024, the worker recalled general discussions about the need to build up the business and make the skin clinic more lucrative.
However, no specific details were shared about financial difficulties, and it was never suggested that workforce reductions might be necessary. The worker's understanding was that the skin clinic was "keeping the lights on" and holding its own financially.
The redundancy meeting and immediate aftermath
On 2 May 2024, the chief executive officer invited the worker via Facebook Messenger to meet at a café that afternoon for a "catch up" with herself and the managing director. Such meetings were not unusual, as staff often met the director at the café to avoid workplace interruptions.
During the meeting, the director told the worker "that she was going to be redundant, or her position was going to be redundant." The worker said she was "blindsided by this news" and had never been made redundant before.
There was discussion about the skin clinic moving from its current location, where two practice nurses from the general practice would provide support to the skin clinic physician instead of having a dedicated practice nurse.
The worker's understanding from the conversation was that her role would cease to exist and the business would "make do" with existing practice nurses providing coverage. When she asked about her last day that evening, the chief executive officer said the four-week notice period would likely apply.
Discovery of replacement and procedural concerns
On 7 May 2024, another practice nurse from one of the other general practices came to the skin clinic to be trained in skin clinic tasks by the worker. The worker discovered that the director had offered this nurse the role of skin clinic practice nurse, taking over from her but working out of a different location.
The worker said she "tried to be professional and to show [the other nurse] the specialised parts of her role as a skin clinic practice nurse, but she felt increasingly uncomfortable and sick."
She ended up leaving that day and going on sick leave, which continued until her employment ended on 23 May 2024.
The company provided the worker with a redundancy letter dated 6 May, stating they had "completed a review of our services overall including workforce in the current environment of shrinking funding and increasing costs."
The letter explained that moving the skin cancer centre would make it "viable, with the use of the existing resource at the general practice setup."
ERA findings on redundancy genuineness
The ERA found that the redundancy was not genuine, noting several key issues with the employer's decision-making process. The Authority observed that while there may have been commercial rationale for consolidating operations, it was "not satisfied that the commercial rationale extended to a genuine consideration of why the practice nurse position at the skin clinic was to be made redundant."
The ERA noted that evidence showed the replacement nurse used "around 30 per cent of her hours for the skin clinic and around 70 per cent for general practice" after the worker left, suggesting "there was a 30 per cent practice nurse role available working for the skin clinic. This role was not offered to [the worker]."
The Authority also found flaws in the employer's selection process, noting that the employer suggested "the role of a practice nurse had evolved and the expectation was that all practice nurses would provide coverage across its three areas of practice."
However, the ERA determined this rationale was "fundamentally flawed because [the worker] was not employed to work solely in the skin clinic" and had actually offered to work in other locations when the physician was on leave.
Procedural fairness failures in consultation
The ERA identified significant procedural deficiencies in how the redundancy was handled. The Authority found that "there was no information provided to [the worker] prior to the 2 May meeting" and that the employer "predetermined [the worker's] role would be made redundant prior to meeting with her on 2 May, which was the first and only time [the employer] met with [the worker] about the end of her employment."
The ERA concluded there was "significant procedural unfairness in the way [the employer] invited [the worker] to a 'catch up' meeting without telling her the purpose of the meeting and without giving her the opportunity to have a support person."
The Authority found the employer "could not reasonably have expected [the worker] to engage and respond meaningfully to a redundancy proposal made in those circumstances."
The ERA determined that the employer "had already made the decision to make [the worker] redundant and the purpose of the meeting was to tell her that" and was "not persuaded [the employer] came to the meeting with an open mind ready to listen to [the worker's] feedback."
The Authority found "a total absence of genuine consultation over the redundancy."
Compensation and lost wages award
The ERA awarded the worker $23,000 compensation for humiliation, loss of dignity and injury to feelings, considering "the impacts on [the worker] due to both the lack of genuine reason for the redundancy, and the complete lack of process."
The Authority noted the worker gave evidence that the job loss was "shocking and was the loss of a career she expected to have until retirement" and "impacted her independence, stability and feeling of self-worth."
The ERA also awarded $14,151.46 in lost wages for the three months following her dismissal. The Authority noted that unlike cases where redundancy is genuine but procedurally flawed, since it found "a lack of genuine reason for the redundancy and a complete lack of process," the worker's dismissal was not inevitable and therefore lost wages were not confined to the time it would have taken to complete proper consultation.
The Authority declined to reduce the awards for contributory conduct, finding no evidence to support the employer's suggestion that the worker had contributed to her situation.
The total award of over $37,000 reflected the ERA's finding that the employer had failed to act as a fair and reasonable employer in both the decision-making and process aspects of the redundancy.
