s.394 - Unfair dismissal

• [1] This decision concerns an application made by Cathy Arbon for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The respondent, AHB Group Pty Ltd, submits that Mrs Arbon was dismissed by reason of genuine redundancy. Mrs Arbon contends that the redundancy was not genuine, and her dismissal was unfair.

• [2] I have determined that Mrs Arbon's dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. By reason of s 385(d), Mrs Arbon was not unfairly dismissed. The reasons for this decision follow.

• [3] The respondent project manages the construction of residential house dwellings and operates around Metropolitan Melbourne and parts of regional Victoria. Mrs Arbon commenced employment with the respondent on 13 May 2024[1] as a full time Business Support Officer.[2] It does not appear to be in dispute that there was no enterprise agreement covering Mrs Arbon's employment.

• [4] On the morning of 27 May 2025, a meeting was held between Mrs Arbon, her manager, Antonio Garofalo and the Executive General Manager, Jasmina Todoroski. At this meeting, Mrs Arbon says that she was advised that due to a significant decrease in sales, her position had been made redundant. The termination letter dated 27 May 2025 referred to a "recent review" of the respondent's business operations and structure, and a decision to make a number of changes aimed at improving efficiencies, streamlining operational flow and aligning the business structure with business targets. The letter stated:[3]

As a result of this process, we have identified several roles that will be impacted in the new structure, and unfortunately, your position is one of them. Please know that this decision is based solely on the role and not a reflection of your individual performance or contributions.

• [5] Mrs Arbon said that no redeployment options were provided to her, nor was there any consultation. Accordingly, Mrs Arbon does not accept that her role was genuinely redundant. Rather, Mrs Arbon submits that she was dismissed on the basis that the respondent considered her to be "underperforming,"[4] or that the dismissal was retaliatory action arising from internal politics, system dysfunction and her insistence on ethical and lawful conduct.[5] Further, Mrs Arbon contends that her role is ongoing and is being performed by another employee.

• [6] For the purposes of s 396(a)-(c) of the Act, there was no dispute that the application was made within the 21-day period required by s 394(2), and Mrs Arbon was protected from unfair dismissal within the meaning of s 382. The respondent did not contend that it was a small business employer within the meaning of s 23 of the Act and accordingly, the question of compliance with the Small Business Fair Dismissal Code did not arise for determination.

• [7] Sections 396(d) and 385(d) of the Act require determination of whether the dismissal was a case of genuine redundancy. The parties are in dispute about this matter. Accordingly, I must decide that question before considering the merits of Mrs Arbon's application.

Was Mrs Arbon's dismissal a case of genuine redundancy?

• [8] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of genuine redundancy, which is defined in s 389 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.

• [9] Section 389 of the Act was recently considered by the High Court in Helensburgh Coal Pty Ltd v Bartley.[6] Steward J relevantly explained as follows:[7]

1. Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person's job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.

1. The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed "because of changes in the operational requirements of the employer's enterprise". However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer's "enterprise" which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer's "prerogative". As Ryan J observed in Jones v Department of Energy and Minerals:

"[I]t is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions."

Was Mrs Arbon's job no longer required to be performed by anyone because of changes in the operational requirements of the respondent's enterprise?

• [10] As the plurality in Helensburgh Coal said, s 389(1)(a) of the Act - which considers whether the job is no longer required to be performed - "does not look to whether the employee's position, in terms of job title, was no longer required, but whether their 'job', in the sense of the nature of the work they performed, was no longer required. Section 389(1) refers to a decision by the employer and no one else".[8]

• [11] In her role as Executive General Manager, Mrs Todoroski is responsible for general management of the respondent's business, both strategically and operationally. Mrs Todoroski gave evidence that during the COVID-19 pandemic, the respondent experienced a significant increase in construction contracts, resulting in a substantial pipeline of work. Mrs Todoroski said that Mrs Arbon's key responsibility in the role of Business Support Officer was to manage all customer, supplier and subcontractor disputes brought by or against the respondent companies, including representing the respondent in proceedings at Domestic Building Dispute Resolution Victoria (DBDRV) and the Victorian Civil and Administrative Tribunal (VCAT). Mrs Todoroski said that when Mrs Arbon was employed, the respondent was experiencing high volumes of customer dispute matters, with more than 75 disputes with DBDRV and 15 with VCAT and 3-4 new dispute matters each week. Mrs Todoroski said this was a historical high for the business.

• [12] Mrs Todoroski said that by March 2025, the pipeline of work that had commenced during the pandemic had largely been completed. Her evidence was that in September 2025, the number of active new home builds was 30% lower than the number of active new home builds (being 1600) in August 2024. Further, in or about mid-2024 due to reasons including high inflation, rising interest rates and decreased customer confidence, the respondent suffered a downturn in new home sales.

• [13] In May 2025, the respondent commenced a business review to identify operational efficiencies. The review identified that the volume of dispute matters had significantly decreased, with approximately three dispute matters being commenced against the respondent per fortnight (a decrease of approximately 50% compared to the same period in 2024). The review determined that the role of Business Support Officer was likely no longer required in light of this decreased workload and that the residual functions of the role could be absorbed and performed by other employees, or outsourced to external legal providers where necessary, resulting in significant cost efficiencies. Following discussions with the respondent's senior management, including Mrs Arbon's manager, a decision was ultimately made to proceed to make the Business Support Officer role redundant.

• [14] Mrs Arbon rejects that her job was no longer required and says that the role of Business Support Officer is ongoing. Mrs Arbon contends that the DBDRV and VCAT disputes only comprised a component of her role and the evidence before the Commission does not support a conclusion that the respondent's business review considered the other tasks she performed. This includes the support Mrs Arbon said she provided to the construction and administration teams in dealing directly with client issues.[9] Mrs Arbon says that she implemented an internal customer care team for the purposes of avoiding complaints being made through the DBDRV and VCAT, which was a successful endeavour, and she was extremely busy dealing with these complaints.[10] Mrs Arbon also contends that her manager, Mr Garofalo did not attend her weekly meetings and accordingly, did not have sufficient knowledge of the duties performed in the Business Support Officer role.[11]

• [15] I accept Mrs Arbon's submission that the role of Business Support Officer included tasks beyond representing the respondent at DBDRV and VCAT, including conflict resolution and business support. This is borne out by the position description before the Commission.[12] I also accept that Mrs Arbon's role evolved somewhat during her employment through the implementation of the internal customer care team, which was established with Mrs Arbon's support for the purposes of avoiding formal DBDRV and VCAT proceedings where possible. Notwithstanding this, I am satisfied that DBDRV and VCAT work remained as a prominent feature of the Business Support Officer role and there had been a decrease of approximately 50% in the number of dispute matters commenced against the respondent per fortnight.

• [16] The relevant issue for determination is whether the role Mrs Arbon was performing was no longer required to be performed by anyone. This is a choice reserved to the respondent to make, if it determines that the job has ceased to be needed because of changes in the operational requirements of its enterprise.

• [17] I am satisfied on the evidence that there has been a change in the operational requirements of the respondent's enterprise. The reasons Mrs Todoroski provided for Mrs Arbon's redundancy were rational and convincing. The respondent restructured its relevant operations to, amongst other things, improve efficiencies, streamline operational flow and better align its operations with business needs, having regard to the decrease in new construction work, which I accept translated to less formal dispute matters for the Business Support Officer to manage. I am satisfied that the respondent made this decision by reference to Mrs Arbon's role as it stood at the point in time that it conducted its business review in May 2025. I reject the contention that Mrs Arbon's manager, Mr Garofalo, did not have sufficient knowledge of the duties performed by Mrs Arbon, simply because it is alleged that he was not in attendance at weekly meetings with Mrs Arbon, as contended.

• [18] The evidence before the Commission does not support a finding that the role of Business Support Officer is ongoing, as Mrs Arbon submits. I accept the evidence of Mrs Todoroski that the Business Support Officer function has been absorbed, and the role responsibilities were redistributed, such that Mrs Arbon's job no longer exists. Nor do I accept that the role of Business Support Officer was "rebadged" but with identical tasks, as Mrs Arbon contends.[13] The relevant duties were broadly absorbed by an employee responsible for managing the construction team, who I accept had capacity to take on the functions of the Business Support Officer role in addition to those previously being performed.[14] It was within the respondent's prerogative to break up the collection of duties and responsibilities attached to the Business Support Officer role and distribute them among other roles, as confirmed by the High Court (see paragraph [9] of this decision). The respondent's current corporate hierarchy demonstrates that this is what occurred [15] this case.15

• [19] It follows that I am satisfied that the respondent no longer required Mrs Arbon's job to be performed and that her job is not being performed by anyone else. The role of Business Support Officer has not been filled. The fact that the respondent advertised for the role of Customer Experience Coordinator on 28 May 2025 (the day after Mrs Arbon's redundancy) and referred, in the advertisement, to the respondent as "one of the fastest growing and successful housing companies"[16] does not contradict this conclusion, as Mrs Arbon contends. There is no evidence that the advertised role has any relationship to the Business Support Officer role. The advertisement was for an entry level, administration position.[17] I accept the evidence of the respondent's Chief Talent Officer, Mr Singh, that the role was advertised (in both Derrimut and Warragul) to back fill an existing position in those locations; the role was not a newly created position. Further, the advertisement contained language to make the respondent an attractive proposition to potential candidates. In particular, I reject Mrs Arbon's contentions that respondent's requirement for the advertised role of Customer Experience Coordinator demonstrates that the Business Support Officer is still required, and that the operational reasons relied upon by the respondent were not genuinely held.[18]

• [20] There is no evidence before the Commission that draws a causative link between the redundancy of Mrs Arbon's role and Mrs Arbon's allegation that the redundancy was in retaliation for raising concerns about ethical and lawful conduct during her employment.[19] Mrs Todoroski gave evidence that she was unaware of any formal complaint made by Mrs Arbon during her employment, regarding or related to the matters raised in the application. Further, Mrs Arbon contends that her dismissal was personally motivated by an incident in relation to recruiting an additional staff member, and involving Mrs Todoroski (a) making a hostile telephone call and accusing Mrs Arbon of acting behind Mrs Todoroski's back, (b) Mrs Todoroski hanging up on Mrs Arbon and ignoring a return phone call, (c) Mrs Todoroski showing ongoing hostility and being unapproachable to Mrs Arbon, (d) Mrs Todoroski making a comment to Mrs Arbon to the effect of, "Don't worry, I'm not going to sabotage your job" which Mrs Arbon found inappropriate, and (e) Mrs Todoroski creating tension in her relationship with Mrs Arbon with an intent to undermine Mrs Arbon.[20]

• [21] Mrs Todoroski rejects the contention that the redundancy of Mrs Arbon's role was personally motivated or related to the above incident. Mrs Todoroski says that the issue raised by Mrs Arbon concerned Mrs Arbon failing to follow her direction on the hiring of new staff. Mrs Todoroski said that an offer made to a co-ordinator by Mrs Arbon was contrary to her direction and had to be withdrawn, which caused embarrassment and discomfort for both the candidate, the respondent and Mrs Todoroski. Mrs Arbon's position, however, is that her offer to the candidate was done with full authorisation from the director and chief financial officer.[21]

• [22] Mrs Arbon said that the dismissal was also in response to a further incident involving Mrs Todoroski regarding an update to the terms and conditions on the respondent's website. Mrs Arbon contends that Mrs Todoroski "shut her down with abrupt comments" and raised "unjust concerns" with Mr Garofalo.[22] Mrs Todoroski rejects this and contends that Mrs Arbon had not completed her task of reviewing the terms and conditions before the respondent's updated website went "live," resulting in Mrs Todoroski expressing her concern about the legal risks this gave rise to for the business.

• [23] I have recorded these matters here, noting they reflect concerns held by Mrs Arbon about the genuineness of her selection for redundancy. However, the Commission should not determine contentions as to unfair selection procedures at this stage of the proceedings. This is because such matters are relevant to the merits of the unfair dismissal application and Mrs Arbon's contention that she was dismissed harshly, unjustly or unreasonably.[23] I record my view however, that I do not consider there to have been an ulterior motive for Mrs Arbon's dismissal, on the evidence before the Commission. Nor am I persuaded that Mrs Arbon was in fact dismissed for performance reasons, which Mrs Arbon also contends. While Mrs Arbon seeks to rely upon the witness statement of Megan Silenge,[24] including Ms Silenge's contention that she overhead Mr Singh state that Mrs Arbon's dismissal was due to poor performance, Ms Silenge did not attend the Commission to swear to the truth of her statement, nor was her evidence the subject of cross examination. I am unable to attribute any weight to the statement of Ms Silenge, nor that of Sevda Karaosmanoglu,[25] who also was not in attendance at the hearing. I note that Mr Singh gave direct evidence at the hearing denying the contention, and I found him to be a credible witness.

• [24] In this case, the weight of the evidence before the Commission demonstrates, and I find, that the respondent no longer required Mrs Arbon's job to be performed by anyone because of changes in the operational requirements of its enterprise. It follows that the criterion in s 389(1)(a) of the Act is satisfied.

Was there an obligation upon the respondent to consult?

• [25] Section 389(1)(b) of the Act requires the Commission to consider whether the respondent has complied with any obligation in a modern award or enterprise agreement that applied to Mrs Arbon's employment to consult about the redundancy. As earlier noted, it is not in contest that there is no enterprise agreement that applied to Mrs Arbon in her employment. Nor am I satisfied that a modern award has application, having regard to the seniority of Mrs Arbon's role, and the responsibilities attached to it. Nor did the parties contend otherwise.

• [26] It follows that for the purposes of s 389(1)(b) of the Act, there was no obligation in a modern award or enterprise agreement that applied to Mrs Arbon's employment to consult about the redundancy.

Would it have been reasonable in all the circumstances for Mrs Arbon to be redeployed within the respondent's enterprise or the enterprise of an associated entity?

• [27] Notwithstanding that the respondent no longer required Mrs Arbon's job to be performed by anyone because of changes in the operational requirements of its enterprise, Mrs Arbon's dismissal will nonetheless not be a case of genuine redundancy if it would have been reasonable in all the circumstances for her to be redeployed within the employer's enterprise_._[26] This criterion incorporates a requirement of reasonableness.[27] Whether redeployment of an employee is considered reasonable will depend on the circumstances that existed at the time of the dismissal.[28] The term "redeployed" in s 389(2) is be given its ordinary and natural meaning, which is to "transfer to another job, task or function."[29]

• [28] The termination letter states that the respondent "carefully considered whether there are any suitable alternative roles available within the business, but unfortunately, there are none at this time."[30] However, Mrs Arbon contends that the respondent did not adequately consider redeployment opportunities for her. In her written material, Mrs Arbon did not identify an alternative job, position or work which existed at the time of the dismissal to which she could or should have been redeployed. However, during cross-examination, Mrs Arbon's evidence was that had she been advised of the Customer Experience Coordinator role, she would have accepted that role "until the business improves again."[31]

• [29] I accept Mrs Todoroski's evidence was that the respondent conducted an assessment of the available managerial roles available that matched Mrs Arbon's skills and capabilities, having regard to her experience and expertise.[32] The respondent concluded that there were no reasonable redeployment opportunities for Mrs Arbon within the company and its associated entities. The respondent acknowledges that it did not raise with Mrs Arbon the Customer Experience Coordinator role that it considered to be an entry-level position.

• [30] I do not consider the Customer Experience Coordinator role to have been a job, or a position, or other work within the respondent's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mrs Arbon. The advertised salary for the role was approximately half of Mrs Arbon's salary, and it involved administrative duties. Mrs Arbon has had a successful career over 25 years in the industry, holding senior management roles and a building degree.[33] By any measure, Mrs Arbon's skills and experience well exceeded the requirements of the Customer Experience Coordinator position. A further relevant circumstance is Mrs Arbon's evidence that she would have considered it only a temporary arrangement until the respondent's business improved. Absent agreement between the parties, I do not consider the Customer Experience Coordinator to have been a reasonable redeployment opportunity if Mrs Arbon would only agree to the arrangement temporarily, pending the possibility of altered or improved business conditions.

• [31] Accordingly, I am satisfied, and I find for the purposes of s 389(2) of the Act that it was not reasonable in all of the circumstances for Mrs Arbon to be redeployed within the respondent's enterprise or the enterprise of an associated entity.

• [32] Having regard to the above matters, and the conclusions reached, I am satisfied that Mrs Arbon's dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. It follows, by reason of s 385(d) of the Act, that Mrs Arbon was not unfairly dismissed.

• [33] Mrs Arbon's application for an unfair dismissal remedy is dismissed.

L. Connolly, Connolly Workplace Law, for the respondent.

[1] Exhibit 1 (Digital Court Book (DCB)) 2 at [1.1]; DCB 10

[6] [2025] HCA 29

[8] Ibid at [30] (Gageler CJ, Gordon and Beech-Jones JJ)

[9] Transcript of proceedings (Transcript) PN206

[14] DCB 94 at [14]; Transcript PN239-240, 245, 247

[23] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]; cited in Eli Stever v Colas New South Wales Pty Ltd [2020] FWC 3832 at [14]

[26] Or the enterprise of an associated entity

[27] Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [32]- [33]

[28] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363 at [28]

[29] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714; (2014) 240 IR 130 at [36]

[33] DCB 18 at [3]-[4]; Transcript PN301

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