s.394 - Unfair dismissal

Unfair dismissal application - genuine redundancy - application dismissed

• [1] Brady Tamblyn has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The respondent, Deepcore Australia Pty Ltd (Deepcore), objects to the application on the ground that the dismissal was a 'genuine redundancy' within the meaning of s 389 of the Act, and contends that in any event the dismissal was not unfair.

• [2] Mr Tamblyn's evidence was that on 30 April 2025, he received a letter from Deepcore which stated that his position as a trainee driller would be made redundant for operational reasons. The letter stated that Deepcore had reviewed all of the vacancies across the company and its associated entities, that there were no suitable vacancies for him, and that he could not be redeployed. The letter further stated that his employment would end immediately and that he would be paid 3 weeks of pay in lieu of notice and 7 weeks of redundancy pay.

• [3] Mr Tamblyn said that he later discovered that Deepcore had other available positions. He saw a job advertisement for driller assistants, dated 28 May 2025, for work in regional New South Wales. Mr Tamblyn also said that Deepcore had continued to engage people in roles that he could have undertaken, and produced a handwritten list of some thirty people who he said had been employed by Deepcore since January 2025. Mr Tamblyn suggested that he was not really redundant and that he could have been redeployed to other roles.

• [4] Mr Tamblyn said in his evidence that in November 2024 he had been removed from a project site unfairly, and that if he had been allowed to remain at that site, he might never have been made redundant. He also said that in January 2025 a medical examination had revealed that he had a shadow on his lung, that the company did not get back to him with the results until March 2025, and that the results showed he was fit for work. Mr Tamblyn said that he believed the company had held him back from work and that this had resulted in or contributed to his redundancy. He also said that in unspecified respects he was lied to by the CEO and the human resources director. Mr Tamblyn submitted that his dismissal was unfair and asked the Commission to order Deepcore to pay him compensation, including for the period he was removed from site in November 2024, and for accrued sick leave.

• [5] Matthew Linforth-Brown is the general manager of Deepcore. Mr Linforth-Brown gave evidence that the company provides its clients with core samples from hard rock using a diamond-impregnated drill, and that work is precarious as it is contract-based and can be dependent on the results of early samples. Mr Linforth-Brown said that at the time of the dismissal, Mr Tamblyn was a trainee driller, which despite its name is not an entry level role, but one that signifies that a worker is competent to drill, but not to oversee a drilling rig.

• [6] Mr Linforth-Brown said that on 17 April 2025, the human resources manager, Kelsey Tilburn, sent Mr Tamblyn a letter stating that changes were being considered for field-based workers in response to recent reductions in the scope of work across the business, and that these could mean that his position of trainee driller would be made redundant. The letter requested Mr Tamblyn to provide any feedback he may have and noted that the impact of the changes could be the termination of his employment, in which case he would receive 3 weeks' notice and 7 weeks' severance. The letter stated that the company would investigate possible redeployment within the company and its associated entities. At the time this letter was sent to Mr Tamblyn, he was not deployed on an active project. The background to and reasons for this are explained in Mr Linforth-Brown's witness statement. This account is detailed and credible and I accept it. It is not necessary to recount these matters here.

• [7] Mr Linforth-Brown said that on 24 April 2024, both he and Ms Tilburn tried to contact Mr Tamblyn for the purpose of discussing the matters referred to in the letter of 17 April 2025. but he could not be reached. On 24 April 2024, Ms Tilburn sent a letter to Mr Tamblyn stating that attempts had been made to contact him about the potential redundancies, that the company was aiming to make a decision early the next week, and that if he had any questions or concerns he should contact the designated managers. That day, Mr Linforth-Brown sent Mr Tamblyn a text, and on 28 April 2025 he called Mr Tamblyn, but could not contact him.

• [8] Mr Linforth-Brown said that he considered whether there were any suitable roles for Mr Tamblyn across the group and concluded that there were none. On 28 April 2025, he had a discussion with the general manager of Deepcore's parent company, Cameron Wright, about whether there was scope for redeploying Mr Tamblyn across the group, but nothing was identified. Mr Linforth-Brown said that the downturn in business had led to a reduction in the number of operational rigs. By April 2025, 4 rigs had ceased operating. As a result, Mr Linforth-Brown decided that Mr Tamblyn's job was no longer required. A number of other positions were affected by the reduction in the required headcount. On 30 April 2025, Ms Tilburn sent Mr Tamblyn the termination letter referred to above.

• [9] Mr Linforth-Brown said that the company no longer required Mr Tamblyn's job to be done by anyone. As to the advertisement for 'assistant drillers' in late May 2025, Mr Linforth-Brown said that this was a different and lower position from the 'trainee driller' position previously held by Mr Tamblyn. He said that 'assistant drillers' are also known as 'offsiders' whose role is to help out. He said that the progression was as follows: probationary offsider, offsider (assistant driller), trainee driller, and then driller.

• [10] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of 'genuine redundancy', which is defined as follows by the Act at s 389:

"(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer."

• [11] I find that Deepcore no longer required Mr Tamblyn's job to be performed by anyone because of changes in the operational requirements of its enterprise. I accept the evidence of Mr Linforth-Brown that there had been a downturn in work resulting in a reduced labour requirement, and that Mr Tamblyn's job was no longer needed. I further find that it was because of changes in the operational requirements of its enterprise that the company no longer wanted the job done by anyone. Those changed operational requirements were its new assessment of those requirements (see Shachar v Electrical Home Aids Pty Ltd t/a Godfreys [2018] FWC 4892 at [27] - [30]) and the business downturn that it was experiencing.

• [12] As to the advertisement for driller assistants, I find that these were for lower level roles. Mr Tamblyn's evidence was that all drilling roles were very much alike, however I prefer the evidence of Mr Linforth-Brown about how they differ and where these roles sit in the progression structure. I also accept Mr Linforth-Brown's evidence that the advertisement was placed in order to seek pre-qualified candidates for potential work the company hoped to secure in the relevant areas. This makes commercial sense to me, and Mr Linforth-Brown was a credible witness. This was not an advertisement for Mr Tamblyn's job, nor does it cast doubt on the company's explanation of its reasons for his dismissal.

• [13] I reject Mr Tamblyn's suggestion that he could not have been redundant because there were other people doing roles that he could have performed. These were the roles of other workers. They were not available for him. Mr Tamblyn's handwritten list of persons hired by the company since January 2025 is of no assistance to the resolution of this matter. It does not contradict the clear and credible evidence of Mr Linforth-Brown about the company's situation at the end of April 2025 or his reasons for terminating Mr Tamblyn's employment. To the extent that Mr Tamblyn suggested that Deepcore had ulterior motives for ending his employment, I reject this. Mr Linforth-Brown denied that the company had kept Mr Tamblyn from working in the months leading up to his redundancy, and I believe him. He also said, and I accept, that the project that Mr Tamblyn was working on in December 2024 ended in early 2025; it is therefore not the case that, had Mr Tamblyn not been removed from that site, he might not ultimately have been made redundant. The evidence does not support any such conclusion. I find that the element of a 'genuine redundancy' in s 389(1)(a) is met.

• [14] Next, it is necessary to consider whether the company complied with any obligation in a modern award or enterprise agreement that applied to Mr Tamblyn's employment to consult about the redundancy. Mr Tamblyn was covered by the Mining Industry Award 2020 (Award). Clause 28 of the Award requires an employer to consult with employees about major workplace change. Clause 28.1 states that where an employer has made a 'definite decision' to make major changes in organisation or structure that are likely to have significant effects on employees, the employer must give notice of the changes to the employees who may be affected by them, and discuss the changes, their likely effect on employees, and measures to avoid or reduce the adverse effects of changes on employees. Clause 28.2 provides that for the purposes of these discussions, the employer must give affected employees information in writing about the changes and their expected effects.

• [15] I find that Deepcore complied with these requirements by sending Mr Tamblyn the consultation letter dated 17 April 2025 and the further letter on 24 April 2025. There was ultimately no oral discussion. But a discussion can occur by correspondence. And although ordinarily such correspondence would require both parties to be involved in it, I find in this case that the company made reasonable efforts to contact Mr Tamblyn but that he did not engage with it. Mr Tamblyn said that on 29 April 2025 he left a message for Ms Tilburn to call him but she did not reply. But when asked why he did not respond to the letters of 17 or 24 April 2025, Mr Tamblyn said he was tired from performing hard manual labour in another job. I do not find this to be a good reason for his failure to respond to the company. I find that Mr Tamblyn did not make reasonable efforts to engage with the company about the changes from 17 April to 29 April 2025, and that in these circumstances, the employer's correspondence sufficed to satisfy the requirements of clause 28 of the Award. The condition in s 389(1)(b) is satisfied.

• [16] Finally, I find that it would not have been reasonable in all the circumstances for Deepcore to redeploy Mr Tamblyn within its enterprise or that of its associated entities. Mr Linforth-Brown gave evidence that there were no suitable roles. I accept this. There is no evidence to the contrary. There is also no evidence that Mr Tamblyn was lied to and I reject this. Each of the requirements of s 389 is met. The dismissal was a case of genuine redundancy and was therefore not unfair.

• [17] In any event, even if I had concluded that the consultation requirements were not met, and that the dismissal was not a 'genuine redundancy' for the purposes of s 389, I would have concluded that the dismissal was not unfair.

• [18] Section 387 provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters in subsections 387(a) to (h). In circumstances of dismissal for reason of redundancy, no relevant finding can be made in relation to the consideration in s 387(a), namely whether there was a 'valid reason for the dismissal related to the person's capacity or conduct'. Deepcore does not contend that there was any valid reason for dismissal related to Mr Tamblyn's capacity or conduct. Rather, its reliance on redundancy as the reason for dismissal is an operational reason to be considered in connection with s 387(h), 'any other matters the Commission considers relevant' (see below). Similarly, the considerations in ss 387(b) and (c) are not material in the present case. They concern whether the employee was 'notified of that reason' (i.e. the valid reason in s 387(a)), and whether the person was given an opportunity to respond to any reason related to capacity or conduct. There was no refusal to allow a support person to assist at any discussions relating to dismissal (s 387(d)), nor is the question of warnings for poor performance relevant (s 387(e)). The company is not a small enterprise. The considerations in ss 387(f) and (g) carry no weight. As to s 387(h), 'any other matters the Commission considers relevant', my conclusion is that the company had an entirely legitimate reason to end the employment, which was a downturn of work and the fact that it no longer wanted Mr Tamblyn's role to be done by anyone. To the extent that the company's observance of its consultation obligations under the Award might be considered deficient, I do not consider that this manifested any substantive unfairness, and that the good reason for the dismissal outweighs any procedural shortcoming. The dismissal of Mr Tamblyn was not harsh, unjust or unreasonable. It was not unfair.

• [19] The dismissal was a case of genuine redundancy within the meaning of s 389. It was therefore not unfair. The application is dismissed.

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