s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - genuine redundancy - jurisdictional objection upheld - application dismissed

• [1] Adam Snushall was from all accounts a well-regarded employee of Georgiou Group Pty Ltd (Georgiou Group). Georgiou Group operates a civil construction business. Mr Snushall commenced employment with Georgiou Group in 2018 as a Supervisor and was promoted to the role of Senior Supervisor in 2022. Mr Snushall worked on various civil construction projects in New South Wales during his employment and most recently had been working on an Appin Road Upgrade project since early 2024. Mr Snushall was given notice by Georgiou Group on 4 June 2025 that his employment would end by reason of redundancy on 4 July 2025. Mr Snushall filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 21 July 2025. Georgiou Group raised a jurisdictional objection to Mr Snushall's application on the ground that Mr Snushall's dismissal was a case of "genuine redundancy" as defined in s.389 of the FW Act. A person cannot be unfairly dismissed within the meaning of s.385 of the FW Act if the dismissal was a case of "genuine redundancy." This decision concerns whether Mr Snushall's decision was a case of "genuine redundancy" and, if necessary, the merits of Mr Snushall's unfair dismissal application.

• [2] The parties filed material in accordance with my directions, and a hearing was held via video on 1 December 2025. I granted permission for both parties to be represented because I was satisfied that granting permission would enable the matter to be dealt with more efficiently. Mr Snushall provided evidence in support of his application and was cross-examined during the hearing. Georgiou Group relied on evidence from Sezgi Erken (Human Resources Manager - NSW) and Andrew Burns (NSW Construction Manager). Ms Erken and Mr Burns were cross-examined during the hearing.

• [3] I have reviewed the evidence filed by the parties and find that:

• (i) Mr Snushall's employment contract for the Senior Supervisor position does not identify that his employment is linked to a specific project and the contract required him to work at locations as directed by Georgiou Group.[1]

• (ii) Georgiou Group was acquired by a European construction company, Strabag SE, in early 2025. The acquisition has prompted significant organisational change within Georgiou Group.[2]

• (iii) Since late 2024, Georgiou Group's NSW Business Unit has been experiencing a material and ongoing downturn in work.[3]

• (iv) In May 2025, there were nine Senior Supervisors employed in Georgiou Group's NSW Business Unit.[4]

• (v) Since January 2025, Georgiou Group has undertaken an ongoing restructuring process which has led to a significant reduction in the headcount of the NSW Business Unit. From January 2025 to around 31 October 2025, a total of 18 employees in Georgiou Group's NSW Business Unit have been terminated due to redundancy including three Senior Site Supervisors. More redundancies are likely to occur in the future.[5]

• (vi) Nick Fryday (General Manager - NSW) approved the implementation of a redundancy process for Mr Snushall and two other employees (another Senior Supervisor and an Environmental Advisor) on 28 May 2025.[6] Mr Fryday also approved the implementation of redundancy processes for two Project Engineer positions and a Supervisor on 20 May 2025.[7] Mr Fryday was also requested to approve a redundancy process for a Senior Supervisor and three Construction Workers on 5 June 2025.[8]

• (vii) Mr Snushall attended a consultation meeting on Friday, 30 May 2025 with Mr Burns and Mr Rosler (Project Manager). Mr Burns handed Mr Snushall a letter dated 30 May 2025 headed Risk of Redundancy. The letter referred to a sustained downturn in business and states: "While the Appin Road Upgrade project remains ongoing, we have undertaken a comparative assessment of employees in similar roles as part of a fair and consistent process. Based on this assessment, I have determined that your role is no longer required." The letter went on to state that Georgiou Group had not identified any suitable redeployment opportunities but was entering a consultation process where Mr Snushall could identify roles. The letter encouraged Mr Snushall to review current vacancies and express an interest in any suitable roles by midday on 3 June 2025. The letter stated a further meeting would be held at the end of the consultation period on 4 June 2025.[9]

• (viii) Mr Snushell sent an email to Mr Burns, Ms Erken, and Mr Fryday at 10:28am on Monday, 2 June 2025. Mr Snushell confirmed that FIFO redeployment opportunities in the Northern Territory and Western Australia would not be suitable given his family commitments. Mr Snushell proposed that he should remain employed until the end of the Appin Road Upgrade project. Mr Snushall highlighted his strong performance history and queried performance assessments which had occurred as part of the redundancy selection process.[10]

(ix) Mr Snushall sent a further email to Mr Burns and Ms Erken at 3:31pm on Monday, 2 June 2025. Mr Snushall's email stated:

"Following my phone conversation with Garry[11] this morning, and after taking some more time to process Friday's news, which came as a shock to me. I wanted to confirm my position. I am prepared to accept the redundancy being offered. Given that the option of working away from home is not in the best interest of myself or my family..."[12]

• (x) Ms Erken provided Mr Snushall with an estimate of his redundancy entitlements on 3 June 2025, ahead of a rescheduled meeting to be held at midday on 4 June 2025.[13]

• (xi) Mr Snushall attended a meeting with Mr Burns and Ms Erken on 4 June 2025 where the termination of Mr Snushall's employment was confirmed. Mr Snushall was provided with a termination letter signed by Mr Fryday which confirmed Mr Snushall's employment would end by reason of redundancy on 4 July 2025.[14]

• (xii) Another Senior Supervisor, Nick Kalaitsidis, performed senior supervisory work on the Appin Park Upgrade project for around seven shifts in mid-to-late July 2025.[15]

• (xiii) No Senior Supervisors have been hired in the NSW Business Unit since Mr Snushall was dismissed on 4 July 2025.[16]

Whether Georgiou Group no longer required Mr Snushall's job to be performed by anyone because of changes in its operational requirements - s.389(1)(a)

• [4] It is important to emphasise that the Commission does not have the power to review which employees were selected to be retained or made redundant if it is satisfied operational changes have led to the relevant job no longer being required.[17] That means I cannot, for example, review Georgiou Group's assessment material and determine that Mr Snushall should have scored higher than other Senior Supervisors who were not made redundant.

• [5] The largely uncontested evidence in this case establishes that:

• • There has been a significant downturn in business for Georgiou Group's NSW Business Unit during 2025.[18]
• • Georgiou Group decided to reduce the number of Senior Supervisors in the NSW Business Unit from a headcount of nine employees.[19]
• • Mr Snushall was selected to be made redundant and two other Senior Supervisors have also been made redundant.[20]
• • Georgiou Group has not hired any new Senior Supervisors to replace the employees that have been made redundant.[21]

• [6] Mr Snushall highlighted that Mr Kalaitsidis has performed shifts in the role of Senior Supervisor on the Appin Road Upgrade project since Mr Snushall was made redundant. However, it would be expected that the remaining Senior Supervisors would share some of the duties formerly performed by employees that have been made redundant given Georgiou Group has reduced the overall headcount of Senior Supervisors. I do not consider Mr Kalaitsidis' periods of work on the Appin Road Upgrade project demonstrate that Mr Snushall's job was still required to be performed on an ongoing basis.

• [7] In any event, the critical point is that the evidence establishes Georgiou Group has implemented a reduction in the overall headcount of Senior Supervisors due to operational requirements and Mr Snushall's redundancy was part of that process. Georgiou Group no longer required Mr Snushall's job to be performed by anyone because it did not require nine Senior Supervisors in the NSW Business Unit. These circumstances fall within the meaning of s.389(1)(a) of the FW Act.

• [8] I find that Georgio Group no longer required Mr Snushall's job to be performed by anyone due to operational changes. I find that s.389(1)(a) of the FW Act is satisfied in relation to Mr Snushall's dismissal.

Whether Georgiou Group complied with consultation obligations - s.389(1)(b)

• [9] There is no dispute that the Building and Construction General On-site Award 2020 (On-site Award) applied to Mr Snushall's employment with Georgiou Group. Clause 37 of the On-site Award contains consultation obligations. There is no dispute that these obligations were triggered in relation to Georgiou Group's proposed decision to terminate Mr Snushall's employment by reason of redundancy.

• [10] Clause 37 imposes consultation obligations which apply when an employer makes a "definite decision" to make major changes that are likely to have significant effects on employees. The employer in general terms must:

(i) Give notice of the change to affected employees and their representatives.

(ii) Discuss the changes with the affected employees, with the discussions commencing as soon as practicable after the definite decision has been made.

(iii) Provide employees with all relevant information about the changes in writing including the nature of the changes, the impact of the changes, and other matters likely to affect employees.

(iv) Promptly consider any matters raised about the changes by the employees and their representatives.

• [11] I find that Georgiou Group provided Mr Snushall with notice that it had made a definite decision to reduce the headcount of Senior Supervisors via the Risk of Redundancy letter dated 30 May 2025. That notification was provided promptly after Mr Fryday approved the redundancy process on 28 May 2025.

• [12] Mr Snushall was clearly shocked about the news given to him during the meeting on 30 May 2025. I do not consider the meeting on 30 May 2025 was an adequate opportunity for a discussion of the nature envisaged by clause 37 of the On-site Award.

• [13] However, further communications then occurred on 2 and 3 June 2025. Mr Snushall sent an email at 10:28am on 2 June 2025 to Mr Burns, Ms Erken, and Mr Fryday which confirmed he would not be accepting redeployment to FIFO positions in the Northern Territory and Western Australia. Mr Snushall communicated a proposal that he remain employed until the Appin Way Upgrade project is completed. Mr Snushall also raised concerns with the process that had led to him being selected for redundancy. Mr Snushall was then able to speak with Mr Garry Georgiou via phone in the morning on 2 June 2025. This conversation appears to have led to Mr Snushall sending a further email to Mr Burns and Ms Erken at 3:31pm on 2 June 2025 which stated: "I am prepared to accept the redundancy being offered." Mr Snushall's subsequent email on 3 June 2025 was directed at logistical arrangements for the termination meeting, as opposed to continuing to raise concerns with the decision to make his job redundant.[22]

• [14] Mr Snushall attended a further meeting on 4 June 2025 where he was provided with formal notice that his employment would end on 4 July 2025 due to his position being redundant.

• [15] I am satisfied based on the actions outlined above that Georgiou Group complied with the consultation obligations in clause 37 of the On-site Award in relation to Mr Snushall's redundancy. Mr Snushall was notified of the change and provided with information about the change on 30 May 2025. Mr Snushall was provided with an opportunity to raise concerns about the change and to identify alternative proposals on 2 June 2025. I consider Georgiou Group was obligated by clause 37.4 to respond to the issues raised in Mr Snushall's email sent at 10:28am on 2 June 2025. However, that need fell away after Mr Snushall spoke directly to Mr Georgiou and then indicated he would accept the redundancy at 3:31pm on 2 June 2025.

• [16] I find that Georgiou Group complied with the consultation obligations in clause 37 of the On-site Award and that s.389(1)(b) is satisfied in this case.

Whether it would have been reasonable for Mr Snushall to be redeployed within Georgiou Group's enterprise - s.389(2)

• [17] The evidence establishes that Georgiou Group was prepared to redeploy Mr Snushall to a FIFO role in the Northern Territory or Western Australia. Mr Snushall understandably rejected these offers due to his family commitments.

• [18] Mr Snushall has not identified any other position that he could have been redeployed into within the Georgiou Group or any associated entity. That is perhaps unsurprising given the significant headcount reductions have occurred within the NSW Business Unit in 2025. The evidence demonstrates Georgiou Group has made significant operational changes in 2025 which unfortunately have led to numerous employees losing their jobs through no fault of their own. These changes have left little scope for redeployment within the NSW Business Unit.

• [19] I do not consider it would have been reasonable in all the circumstances for Mr Snushall to be redeployed within Georgiou Group or any associated entity. I find the exception in s.389(2) of the FW Act is not applicable in this case.

• [20] Given my findings above, Mr Snushall's dismissal was a case of "genuine redundancy" as defined in s.389 of the FW Act. That means Mr Snushall cannot satisfy the definition of an unfair dismissal in s.385 of the FW Act.

• [21] Georgiou Group's jurisdictional objection is upheld. Mr Snushall's application is dismissed.

Mr B Newman from 1800Advocates Pty Ltd representing Mr Snushall.

Mr E Elliott of counsel instructed by HWL Ebsworth representing Georgiou Group.

[1] Attachments to Ms Erken's statement (R1), DHB page 117 to 131.

[3] Ms Erken's statement (R1) at [34] and Mr Burns' statement (R2) at [41] and [42].

[4] Ms Erken's statement (R1) at [53].

[5] Ms Erken's statement (R1) at [111] to [114].

[6] Attachments to Ms Erken's statement (R1), DHB page 155.

[7] Attachments to Ms Erken's statement (R1), DHB page 153.

[8] Attachments to Ms Erken's statement (R1), DHB page 157.

[9] Attachments to Mr Burns' statement (R2), DHB page 214 and 215.

[10] Attachments to Mr Burns' statement (R2), DHB page 216 and 217.

[11] This is Garry Georgiou from the Georgiou Group.

[12] Attachments to Mr Burns' statement (R2), DHB page 218.

[13] Attachments to Mr Burns' statement (R2), DHB page 222 and 223.

[14] Attachments to Mr Burns' statement (R2), DHB page 225 and 226.

[15] Ms Erken's statement (R1) at [109].

[16] Ms Erken's statement (R1) at [114].

[17] For example, see Ms Josina can der Kuur v G4s Secure Solutions Australia Pty Ltd T/A G4s [2015] FWC 5095 at [22] and Zhiming Yang v Telstra Limited [2023] FWC 3319 at [16].

[18] Ms Erken's statement (R1) at [34] and Mr Burns' statement (R2) at [41] and [42].

[19] Ms Erken's statement (R1) at [53] to [55].

[20] Ms Erken's statement (R1) at [111].

[21] Ms Erken's statement (R1) at [114].

[22] Attachments to Ms Erken's statement (R1), DHB page 170.

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