s.394 - Unfair dismissal

[1] Ms Carol Semaan (Ms Semaan/Applicant) has made an application to the Fair Work Commission (Commission) under s 394 of the Fair Work Act 2009 (Cth) (FW Act), alleging that she has been unfairly dismissed from her employment with Country Road Clothing Pty Ltd (Country Road/Respondent) (Application).

[2] Country Road objects to the Application, contending that Ms Semaan's dismissal was a case of genuine redundancy.

[3] The matter was heard before me as a determinative conference on 4 December 2025.

[4] Ms Semaan represented herself. Country Road was represented by Ms Sabrina Lees, Senior Employee Relations Advisor and Ms Kristen Honeysett, Head of Workplace Relations and Safety.

[5] Section 394(1) of the FW Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy.

[6] Section 390(1) of the FW Act provides that the Commission may order a person's reinstatement, or the payment of compensation to a person, if it is satisfied that the person was protected from unfair dismissal and has been unfairly dismissed.

[7] Section 385 of the FW Act provides as follows:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[8] Section 396 of the FW Act requires the Commission to decide whether a dismissal was a case of genuine redundancy before considering the merits of an application.

[9] The meaning of "genuine redundancy" is set out at s 389 of the FW Act as follows:

(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.

[10] The Explanatory Memorandum to the Fair Work Bill 2008 provides the following in respect to s 389 of the FW Act:

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer's operational requirements relate only to a part of the employer's enterprise, as this will still constitute a change to the employer's enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

[11] On 16 April 2013, Ms Semaan commenced employment with Country Road on a part-time basis, working in a retail store position.

[12] On or about 19 October 2021, Ms Semaan transferred from the retail store position to a casual customer service representative in the Customer Service Team. The Customer Service Team is primarily responsible for responding to and managing customer inquiries made by telephone, email and live chat.

[13] The role of customer service representative is classified as a Level 2 position under the Clerks - Private Sector Award 2020 (Clerks Award). The Customer Service Team members are based throughout Victoria, New South Wales and Queensland. The team members based outside of Victoria, including Ms Semaan, work remotely.

[14] On 29 December 2024, Country Road's parent entity released a report detailing its half-yearly unaudited interim group results. This report stated that sales had declined by 6.2% and the adjusted operating profit decreased by 71.7% returning an operating profit of 2.6%. The report also stated that following the Country Road's separation from David Jones, it is "currently in the midst of a significant restructure to reconfigure its operating model and rest its structural economics as a standalone business."

[15] On 19 May 2025, all members of the Customer Service Team, including Ms Semaan, received an invitation to attend a Customer Service Team Update meeting scheduled for 10:00am on 20 May 2025 via Microsoft Teams. On 20 May 2025, Ms Semaan attended that meeting in which Country Road announced that it had entered into an offshore arrangement with Infosys to automate or perform many of the work tasks traditionally performed by the customer service representatives. Country Road further announced that because of this arrangement, many of the customer service representative roles will be made redundant, and that the remaining customer service representative roles will be based in Victoria.

[16] Following this meeting there was a further meeting with the casual customer service representatives which commenced at 12:00pm. In this meeting, Ms Semaan was advised that her role would no longer be required as of 11 July 2025. Ms Semaan contends during this meeting that issues of performance and the location of employees were discussed.

[17] At 1:30pm on 20 May 2025, Ms Semaan and Ms Angela Jayasekera exchanged messages in which Ms Jayasekera confirmed that the sole reason for Ms Semaan's redundancy was her interstate location and no other reason.

[18] At 2:20pm on 20 May 2025, Ms Semaan attended a further meeting. The attendees at this meeting were Ms Semaan, Ms Jayasekera, and Ms Georgia Studach. In this meeting, it was confirmed that Ms Semaan's employment will come to an end on 11 July 2025. Ms Semaan was again informed of the reason for the restructure, and that she could access an Employee Assistance Program. Ms Semaan was also advised that she could apply for a 12-month temporary position in the role of supervisor within the Customer Service Team. This role was based in Victoria and required attendance in Country Road's office two days per week. During the proceedings, Ms Semaan accepted that it would not have been reasonable to redeploy her to that role. Ms Semaan was also provided with an internal job sheet, but she stated the roles were "very few and far between."

[19] In addition to the meetings on 20 May 2025, Ms Semaan was provided with a letter of termination dated 20 May 2025. The letter stated:

As we have previously advised, Country Road Group is undergoing transformation to enable a House of Brands operating model and position itself for future growth, and as part of the transformation, we have made the decision to transition certain Customer Service functions to a third-party provider, Infosys.

This has resulted in a significantly reduced Customer Service team, with many of the roles no longer being required.

The purpose of this letter is to confirm Country Road Group's decision that your role of Customer Service Representative will no longer be required, and as a result your casual employment with Country Road Group will end on 11 July 2025.

I understand this may be a difficult time for you. Should you require any additional support, you are encouraged to utilise the free, professional and confidential counselling service that is available to you through our EAP provider (Telus Health). You or your immediate family can contact Telus Health directly on AU: 1300 361 008.

I would like to take this opportunity to thank you for your hard work, contribution and ongoing commitment to Country Road Group, and in particular, for your support as we worked through the transition process with Infosys.

[20] On 23 May 2025, there was a further meeting of the Customer Service Team which provided advice on the new structure and sought feedback. Ms Semaan stated that this meeting had no bearing on the restructure decision that had already been made and resulted in 20 permanent and 12 casual positions in the Customer Service Team being made redundant.

[21] There were no further 'formal' meetings following the meetings outlined above. However, the parties referred to some 'informal' discussions between Ms Semaan and management. However, the parties did not provide evidence as to the extent or content of those discussions.

[22] From 26 June 2025 to 10 July 2025, Ms Semaan and management exchanged various emails. That correspondence related to Ms Semaan requesting a redundancy pay entitlement and Country Road declining that request on the basis that she was a casual employee at the time of her dismissal. The correspondence also traversed issues relating to casual conversion in the period following October 2021.

[23] On 11 July 2025, Ms Semaan's dismissal took effect. On 28 July 2025, Ms Semaan made the Application.

Was Ms Semaan's dismissal a case of genuine redundancy?

[24] There is no dispute, and I so find, that Ms Semaan was dismissed by Country Road. The primary issue to determine is whether Ms Semaan's dismissal was a case of genuine redundancy within the meaning of s 389 of the FW Act.

Was Ms Semaan's job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise? (s 389(1)(a))

[25] Section 389(1)(a) of the FW Act provides that a person's dismissal will be a case of genuine redundancy if his or her job is no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

• [26] The expression "the person's employer no longer required the person's job to be performed by anyone" has long been used and applied in industrial tribunals and courts as a practical definition of redundancy.[1]

• [27] A job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee".[2]

• [28] The test is whether the job previously performed by the employee still exists, not whether the employee's duties survive,[3] notwithstanding there are aspects of the employee's duties still being performed by other employees.[4]

• [29] In determining whether a dismissal is a case of genuine redundancy, it is not the function of the Commission to form a view about whether the employer's decision to make a position redundant was objectively fair or justifiable. The Commission is only concerned with whether the employer acted because of changes in its operational requirements.[5]

[30] Having regard to the evidence before me, I find that Ms Semaan's job was no longer required to be performed by anyone because of changes in the operational requirements of Country Road's enterprise. It follows that s 389(1)(a) of the FW Act is satisfied.

Did Country Road comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy? (s 389(1)(b))

[31] For there to be a genuine redundancy, Country Road must have complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [32] A modern award applies to particular employment if the modern award covers the employee and the employer, the modern award is in operation, and no other provision has the effect that the modern award does not apply.[6] A modern award covers an employer and employee if the award is expressed to cover the employer and employee.[7]

[33] It was not in dispute, and I am satisfied, that the role of customer service representative is classified as Level 2 under the Clerks Award.

[34] The Clerks Award contains an obligation that employers consult with employees about redundancy. Clause 38 of the Clerks Award requires an employer who has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees:

• To give notice of the changes to affected employees;

• To discuss the effect of those changes, including measures that might mitigate the adverse effect of the changes; and

[35] I accept Country Road gave Ms Semaan notice of the change. However, it is apparent that once Country Road made a definite decision, they called collective and individual meetings and went through a process that can be described as being no more than a box ticking exercise.

[36] Country Road could have advised Ms Semaan of the change, that her employment was to be terminated, and provide her with an opportunity to raise any matters in response to the change in a further meeting. Time was certainly on their side. However, the haste in which Country Road ran through the meetings on 20 May 2025, issued the letter of termination, and did not engage in any meaningful consultation thereafter, leads me to a conclusion that the consultation process embarked upon was merely perfunctory and deprived Ms Semaan of a bona fide opportunity to influence the decision maker.[8]

[37] It follows that I am not satisfied that Country Road has complied with its obligation under the Clerks Award to consult.

Was it reasonable in all the circumstances for Ms Semaan to have been redeployed within Country Road's enterprise or the enterprise of an associated entity? (s 389(2))

[38] A person's dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to have been redeployed within the Respondent's enterprise or that of an associated entity of the Respondent.

[39] Ms Semaan did not contend that there was another job, position or other work that he could have been redeployed to, and there is no evidence to support the finding that it would have been reasonable for Ms Semaan to have been redeployed.

[40] Accordingly, I find that it was not reasonable in all of the circumstances for Ms Semaan to have been redeployed by Country Road.

[41] Country Road did not comply with its obligation to consult under the Clerks Award. It follows that I am not satisfied that Ms Semaan's dismissal was a case of genuine redundancy within the meaning of s 389 of the FW Act.

[42] Before I consider whether Ms Semaan's dismissal was harsh, unjust, or unreasonable, I must decide the remaining initial matters under s 396 of the FW Act.

[43] Based on the evidence and materials before me, I am satisfied that:

(a) the Application was made within the period required in s 394(2);

(b) Ms Semaan is a person protected from unfair dismissal; and

(c) the Small Business Fair Dismissal Code did not apply to Ms Semaan's dismissal.

[44] I now turn to a consideration as to whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[45] Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[46] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[9]

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant's capacity or conduct? Section 387(b) - Was the Applicant notified of the valid reason? Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [47] Ms Semaan was not dismissed for a reason that related to her capacity or conduct. It follows that s 387(a)-(c) are not relevant to the question of whether Ms Semaan was unfairly dismissed.[10] These factors weigh neutrally in my consideration.

Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[48] Country Road did not unreasonably refuse to allow Ms Semaan a support person. I regard this factor as a neutral consideration.

Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?

[49] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Section 387(f) - To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[50] I find that the size of Country Road's enterprise had no impact on the procedures followed in effecting the dismissal. This factor weighs neutrally in my consideration.

Section 387(g) - To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[51] It is not in dispute, and I find that Country Road did not lack dedicated human resource management specialists and expertise. This factor weighs neutrally in my consideration.

[52] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[53] As set out above, I have found that Country Road dismissed Ms Semaan because it no longer required Ms Semaan's job to be performed by anyone as result of changes in the operational requirements of Country Road's enterprise and it was not reasonable to redeploy Ms Semaan. This is a valid reason for Ms Semaan's dismissal and weighs in favour of a finding that the dismissal was not harsh, unjust, or unreasonable.

[54] However, Country Road's failure to comply with its consultation obligation under the Clerks Award weighs in favour of a finding that the dismissal was harsh, unjust, or unreasonable.

[55] I have also had regard to Ms Semaan's length of service and personal circumstances that she raised during the proceedings. However, I do not consider those matters individually or collectively weigh in favour of a finding that the dismissal was harsh, unjust, unreasonable.

[56] The central issue in dispute between the parties is redundancy pay. Ms Semaan feels aggrieved that she was employed by Country Road for about 12 years and was not entitled to redundancy pay because she transitioned to a casual employment role in 2021 and was denied conversion to part-time employment thereafter.

[57] The circumstances that led to that transition in 2021 are not sufficiently in evidence before me, and the parties were in dispute about whether Ms Semaan should have been converted to part-time employment. Ms Semaan contends that she made requests for conversion to part-time employment that were ignored or refused without a sufficient basis and that Country Road acted contrary to the casual conversion provisions in the FW Act. Country Road argues that Ms Semaan rejected offers to convert to part-time employment. I do not need to take those matters any further as to the extent there is any outstanding entitlements or liability arising from those events, that is beyond the scope of this Application.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[58] I have made findings in relation to each matter specified in s 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[11]

[59] Having considered each of the matters specified in section 387, I am not satisfied that Ms Semaan was unfairly dismissed within the meaning of s 385 of the FW Act. The only factor pointing towards a finding that the dismissal was unfair is Country Road's failure to comply with its consultation obligation. However, in all of the circumstances, it is highly unlikely that had it complied with that obligation a different outcome would have been arrived.

• [60] In Maswan v Escada Textilvertrieb T/A ESCADA[12], Watson VP stated:

...a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.

[61] I agree with that observation and find that Ms Semaan's dismissal was not harsh, unjust, or unreasonable. In coming to this decision, I have had regard to the object stated at s 381(2) of the FW Act to ensure that a "fair go all round" is accorded.

[62] I am not satisfied that the Ms Semaan was unfairly dismissed within the meaning of section 385 of the FW Act.

[63] The Application is dismissed. An Order to that effect will be issued with this decision.

[1] Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488 (Ulan) at at [15].

[2] Ulan at [17] applying Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 at 308 (per Ryan J).

[3] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].

[4] Dibb v Commissioner of Taxation [2004] FCAFC 126 (Dibb) at [41].

[5] Low v Menzies Group of Companies [2014] FWC 7829 at [16] cited with approval in Adams v Blamey Community Group [2016] FWCFB 7202 at [14].

[8] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd (PR911257) at [25].

[9] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].

[10] UES (Int'l) Pty Ltd v Leevan Harvey [2012] FWAFB 5241 at [42]- [43] (per Acton SDP and Bissett C).

[11] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]- [7].

[12] [2011] FWA 4239.

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