s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - employer has not complied with obligation in relevant modern award to consult about the redundancy - dismissal was not a case of genuine redundancy - dismissal found to be harsh, unjust or unreasonable - compensation ordered

[1] This decision determines an application commenced by Ms Caycee Horsnell (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against her former employer, CEVA Logistics (Australia) Pty Ltd (CEVA / the Respondent). Ms Horsnell contends that she was a person protected from unfair dismissal at the time of being dismissed, that she was unfairly dismissed and seeks that the Fair Work Commission (Commission) order a remedy for the unfair dismissal. The remedy sought by Ms Horsnell is compensation.[1]

[2] CEVA opposed the application on the two grounds. The first ground was that Ms Horsnell's dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. A finding in favour of CEVA on that ground would produce the result that Ms Horsnell cannot have been unfairly dismissed[2] and consequently, the Commission has no power to order remedy.[3] The second ground was that Ms Horsnell's dismissal was not harsh, unjust or unreasonable. A finding in favour of CEVA on that ground would produce the result that Ms Horsnell cannot have been unfairly dismissed[4] and consequently, the Commission has no power to order remedy.[5]

[3] The two grounds upon which the application was contested are the central issues determined by this decision.

[4] On 22 October 2025, the application was the subject of a hearing before me. The hearing concerned the genuine redundancy objection taken by CEVA, merits and remedy. Ms Horsnell appeared for herself. Ms Annastasia Kyriakidis, Senior Advisor - Workplace Relations, Australian Industry Group, appeared for CEVA. At the hearing, Ms Horsnell gave evidence and was cross-examined. Both Mr Felipe Turra (Vice President - Contract Logistics) and Ms Nana Ama (Rita) Agyepomaa Keteku (Human Resources Business Partner) gave evidence for CEVA and were cross-examined. There were no other witnesses called by either party. All the evidence and submissions made by the parties has been considered.

[5] For the reasons explained below, I have dismissed CEVA's genuine redundancy objection. I have taken into account the matters set out at section 387 of the FW Act and concluded that Ms Horsnell's dismissal was harsh, unjust or unreasonable. I have made an order for the payment of compensation. The amount of compensation is a gross amount of $7,439.23, plus superannuation.

[6] The effect of section 390 of the FW Act is that the Commission may order a remedy for unfair dismissal if the Commission is satisfied of the two matters set out below:

(a) the person was protected from unfair dismissal at the time of being dismissed; and

[7] Section 382 of the FW Act explains when a person is protected from unfair dismissal. To be a person protected from unfair dismissal, the person must have completed a period of employment with his or her employer of at least the minimum employment period (section 382(a)); and one or more of the following apply:

(ii) an enterprise agreement applies to the person in relation;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[8] It was uncontested, and I find, that Ms Horsnell was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. At the time of Ms Horsnell's dismissal, CEVA was not a small business employer within the meaning of section 23 of the FW Act.[6] Ms Horsnell was employed by CEVA for a period just short of 12 months from 17 June 2024 until 10 June 2025.[7] This period of employment is of at least the six month minimum employment period.[8] It follows that the requirement in section 382(a) of the FW Act is satisfied. There was a contest as to whether a modern award covered Ms Horsnell. As explained in greater detail below, I am satisfied that the Road Transport and Distribution Award 2020 (RTD Award) covered Ms Horsnell. There was no enterprise agreement that applied to Ms Horsnell's employment. The sum of Ms Horsnell's annual rate of earnings, and such other amounts worked out in accordance with the regulations, was less than the high income threshold.[9] It follows that the requirement in section 382(b) of the FW Act is satisfied by virtue of (i) and / or (iii).

[9] Section 385 of the FW Act explains when a person has been unfairly dismissed. It was uncontested, and I find, that Ms Horsnell was dismissed, which means that section 385(a) is satisfied. Section 385(c), which concerns the Small Business Fair Dismissal Code, does not arise for consideration because CEVA was not a small business employer.[10] The two central issues determined by this decision are the requirements of section 385(b) & (d) of the FW Act.

[10] Ms Horsnell commenced employment with CEVA in the role of Operations Supervisor on 17 June 2024.[11] Ms Horsnell worked at 100 Lockwood Drive, Erskine Park, in the State of New South Wales (100 Lockwood).[12] This is one of nine warehouses that CEVA operate in New South Wales.[13]

[11] Ms Horsnell reported to the Operations Manager for 100 Lockwood.[14] That position was occupied by Mr Vinnie Frith.[15] The Operations Manager for 100 Lockwood reported to the Site Manager for 100 Lockwood.[16] That position was occupied by Mr Jeremy Weatherby.[17] The Site Managers for each of the warehouses in New South Wales reported to Mr Turra.[18]

[12] Ms Horsnell's position description was before me.[19] The position description[20] records that the job purpose was:

To lead, direct and take responsibility for operational activities in a safe and efficient manner including meeting all statutory requirements, service delivery, operational efficiency and cost control and meet Profit & Loss, EBITDA & Service KPI objectives.

[13] Ms Horsnell gave a summary of her responsibilities in similar terms.[21] In her role, Ms Horsnell supervised approximately 10 workers, which included CEVA employees and recruitment agency casuals.[22] It appears that CEVA had two customers at 100 Lockwood.[23] Namely, Mitsubishi Heavy Industries (MHI) and Fender. Ms Hornell's duties were focused on the contract with MHI.[24] It appears that from about August 2024, Ms Parris Taalili was acting as the Operations Supervisor at 100 Lockwood with her duties focused on the contract with Fender.[25]

[14] Mr Turra gave evidence, which I accept, that on being appointed as the General Manager Operations for New South Wales in January 2025 that he was tasked with turning around the profitability of CEVA's warehouses in New South Wales.[26] Mr Turra gave evidence, which I accept, that between January 2025 - April 2025 that he worked with site management to improve the profitability of 100 Lockwood.[27] Mr Turra explained that the management structure at 100 Lockwood was inflated and one of the main reasons that impacted on the profitability of that warehouse.[28] Mr Turra gave evidence that a restructure was necessary to improve the profitability of 100 Lockwood and several other warehouses in New South Wales. Mr Turra developed a business case for a restructure, which he presented to senior leaders of the business on 16 April 2025.[29] Mr Turra received approval to implement the restructure on 12 May 2025.[30] Mr Turra was cross-examined about the scope of the approval given on 12 May 2025.[31] I am satisfied that the approval was to implement the restructure. I do not accept that a decision had also been made on 12 May 2025 to terminate the employment of the affected employees.[32] It appears that the approval given on 12 May 2025 to implement the restructure was the catalyst for the commencement of consultation with the affected employees.

[15] Mr Turra gave evidence, which I accept, that the restructure affected 100 Lockwood and three other CEVA warehouses in New South Wales. This included four roles being made redundant at two warehouses. The roles impacted included the Operations Supervisor occupied by Ms Horsnell at 100 Lockwood, the Operations Manager role occupied by Mr Frith at 100 Lockwood, and similar roles at another warehouse. In addition, the responsibilities and reporting lines of four roles at three warehouses were changed.[33] These role changes affected Mr Weatherby who prior to the restructure was the Site Manager for 100 Lockwood and who reported directly to Mr Turra. As a consequence of the restructure, Mr Weatherby remained the Site Manager for 100 Lockwood. However, Mr Weatherby reported directly to Mr Anthony Barbarich who was appointed as the Senior Site Manager for several warehouses, including 100 Lockwood. Mr Barbarich reported to Mr Turra.[34]

[16] Mr Turra gave uncontested evidence, which I accept, that the duties formerly performed by Ms Horsnell have been redistributed.[35] In very summary terms, the site manager performs the day-to-day site based supervision and management duties that were performed by Ms Horsnell. The customer engagement duties associated with the MHI contract that were performed by Ms Horsnell are performed by other CEVA employees that work in the national team responsible for that contract.

[17] Mr Turra is based in South Australia. He was in Sydney for about a week from on or about Monday 19 May 2025.[36] It appears that consultation commenced with the other affected employees in that week while Mr Turra was in Sydney.[37] Consultation did not commence with Ms Horsnell that week. Ms Horsnell was on annual leave and due to return to work on 20 May 2025.[38] On her last day of leave, Ms Horsnell broke her toe in two places.[39] Ultimately, Ms Horsnell remained off work on leave until the termination of her employment on 10 June 2025.[40]

[18] On Thursday 5 June 2025, Ms Horsnell met with Ms Keteku, and Mr Weatherby who attended by video link.[41] In her witness statement[42] and examination-in-chief at the hearing,[43] Ms Keteku provided a comprehensive recollection of this meeting. Ms Keteku's recollection was aided by a file note.[44] Ms Keteku gave evidence that she took notes during this meeting by hand on a notebook and then typed up the file note right after the meeting.[45] Ms Keteku was challenged on this evidence in cross-examination.[46] I accept that Ms Keteku took notes during this meeting by hand, and then typed up the file note attached to her witness statement. Ms Horsnell did not provide a comprehensive recollection of this meeting. Rather, over a series of different documents, Ms Horsnell set out a brief summary of the meeting.[47] There appears to be some differences between Ms Horsnell's recollection of this meeting and Ms Keteku's recollection of this meeting. Such differences are immaterial and do not need to be resolved. The most significant difference appears to be whether Ms Hornsell was told by Ms Keteku towards the end of the meeting on Thursday 5 June 2025 that she had until Monday 9 June 2025 or Tuesday 10 June 2025 to submit any feedback. This difference was explored in cross-examination of Ms Keteku.[48] It is clear from the questions asked by Ms Horsnell of Ms Keteku that Ms Hornsell's recollection is that she was told that due to Monday 9 June 2025 being a public holiday that she had until Tuesday 10 June 2025 to submit any feedback. Ms Keteku's answers make clear that her recollection is that she told Ms Hornsell that any feedback should be provided by Monday 9 June 2025. This difference is immaterial and does not need to be resolved because it was not until Tuesday 10 June 2025 that Ms Hornsell provided feedback. That feedback was considered by CEVA prior to Ms Hornsell being advised of her dismissal. Accordingly, I do not consider this difference has any bearing on any of the matters in section 387 or 389 of the FW Act that I am required to take into account.

[19] The evidence of both Ms Hornsell and Ms Keteku was that Ms Hornsell was given a letter dated 5 June 2025 (5 June Letter) at the meeting on Thursday 5 June 2025.[49] The 5 June Letter was read at the meeting.[50] The 5 June Letter[51] is reproduced in full below:

CEVA Logistics Re: Proposed restructure and redundancy

We are writing to advise you that CEVA Logistics has undertaken a review of the current NSW Contract Logistics organisational structure. The review has not been undertaken lightly and aims at ensuring that our business is restructured to drive profitability improvements. As a result, a change in the current team structure is being proposed.

As part of this restructure, we are considering the requirement of Operations Supervisor. We are proposing to resize 100 Lockwood operations due to loss of customers and site profitability. At this stage, it is unlikely that we will be able to offer you suitable alternative position.

The purpose of today's meeting is to provide you with details regarding the proposed structure. I must emphasise that this is only a proposal at this stage. We now wish to enter a consultation period to get your feedback about the proposed new structure and the proposed disestablishment of the Operations Supervisor.

We welcome any feedback you may have regarding the proposed structure. If you would like to provide us any thoughts, insights or feedback, please let us know by close of business Monday,9th June 2025.

We understand that you may find this period of time difficult and that you are likely to have a number of questions. We are committed to supporting you through this process and would encourage you to contact a member of the Human Resources team at any time should you have questions or require assistance.

In addition to the above, it is understood that working through these matters may be challenging and therefore it is timely to remind you of our Employee Assistance Program (EAP). The program is a free, confidential, 24 hour service that employees and families may access for work or personal matters. Should you wish to make an appointment with Telus please call 1300 360 364.

In the event that, after consulting with you, we decide to proceed with this proposal, the Operations Supervisor position will be disestablished.

If we are unable to secure a suitable alternative role for you, then your employment with the Company will come to an end for reason of redundancy. You would be entitled to payment of [4 weeks' 1 month's] salary potentially in lieu of notice and you would receive your due entitlements on termination of employment, including redundancy benefits, your leave entitlements, and specialist outplacement career transition support.

During any period of notice, we may require you to not attend work (Garden Leave). You will remain an employee of ours during any period of Garden Leave and must not undertake paid employment (including self-employment) or provide services under contract to another entity during this time

I must take this opportunity to reiterate the importance of confidentiality and maintaining discretion throughout each stage of this process. A breach in confidentiality will result in disciplinary action.

We will schedule a follow up meeting with you as soon as possible to advise you of our final decision regarding the proposed changes

We do understand that this may be a difficult and challenging time for you. Please do not hesitate to ask any questions that you may have, or to let us know if you wish to meet sooner or if you would rather give your feedback in writing.

I look forward to receiving your feedback for us to consider before we make the final decision in this matter

[20] Ms Keteku described the meeting held on Thursday 5 June 2025 as 'not long'.[52] I am satisfied that the most reliable and comprehensive recollection of the meeting held on Thursday 5 June 2025 was given by Ms Keteku in examination-in-chief at the hearing. Ms Keteku's recollection given in examination-in-chief is reproduced below:

PN441: Now, in that statement, you refer to the consultation meetings on 5 June and 10 June. Can you take me to 5 June and just explain to me what happened during that meeting?---

Ms Keteku: Yes. Sure. So on 5 June we have the meeting in the unity room in Minchinbury office. The meeting started at 9, and Ms Horsnell came, and we had Mr Jeremy Weatherby via Teams. During that meeting I explained to her that I was going to go through a consultation process with her, and I basically explained to her that there has been some changes since she has been away. And during that period of time, it has been unfortunate that the changes does affect New South Wales in particular, and that New South Wales essentially is going through a stage whereby we have lost some contracts, and there were some concerns around profitability, and we have had to make some really tough decisions at this point in time. And these are all preliminary at the moment. So nothing has been confirmed; I'm just going through the process with you to explain to you exactly what has transpired. And I went through the letter just to explain to her what it actually - in terms of the consultation process; went through and gave her explanation around business case. I spoke about that particular site and also explained to her that during this process at this stage, nothing has been confirmed. It's just a process that we just wanted to sort of present to you and give an opportunity for you to respond, and also outlay any other positions that potentially we may not have looked into or found out for yourself, because at this stage, preliminarily, your role may be made redundant. During that particular process, when I explained that to her, she got very upset, notably. So I just gave her a moment of silence, just to give her some time to process, offered her if she wanted any water or tissues, and just left silence for a little bit. And when she was ready to talk again, she was explaining to me, you know, how obviously devastated she is with the news, how upset she was, and also then relayed that, you know, how is she going to pay her $5,000 mortgage? And I just said to her, 'Caycee, we haven't made a decision yet. This is preliminary. We're giving you an opportunity. And as I explained to you, today is the day where we're letting you know that potentially this could be actually occurring. But you have an opportunity to come back to us in relation to any other positions that you feel like maybe we haven't considered or seen. But at this stage, we haven't been able to identify anything right now. But please, you have got the opportunity to come back to me on 9 June with a response by close of business, so that at least we can consider what your response is as well, and see if that's something that, you know, we're able to oblige to as well. (emphasis added).

PN444: And with respect to redeployment, what did you advise the applicant with respect to redeployment opportunities?---

Ms Keteku: I did refer to her to have a look within the business. You know, our career pages go out every two weeks. But I gave her the opportunity to at least review it: 'You have got the time now and process the information and have a look through the business about something that you feel that you would be suitable for that maybe we haven't considered. (emphasis added).

PN445: And what was the applicant's response to this?---

Ms Keteku: She was still quite emotional. And I said, 'Look, I know it's a lot to process', but then I referred her back to the EAP, and I also explained to her about the outplacement service if she was unable to find anything. (emphasis added).

[21] Monday 9 June 2025 was a public holiday in the State of New South Wales.

[22] On Tuesday 10 June 2025, Ms Horsnell met with Ms Keteku and Mr Weatherby. I have considered Ms Horsnell's recollection of this meeting and Ms Keteku's recollection of this meeting. There is only one significant difference between Ms Hornsell's recollection and Ms Keteku's recollection of this meeting. The evidence of both Ms Hornsell and Ms Keteku was that Ms Hornsell read aloud a two page letter that she had written.[53] Ms Hornsell's letter[54] is reproduced in full below:

Thank you for the opportunity to engage in the redundancy consultation process. I would like to formally submit the following appeal in relation to the proposed redundancy of my position as Operations Supervisor. I fully appreciate the financial pressures the business is currently facing and understand that cost reduction is a key driver behind this consultation, however I would like to formally express my belief that by making the role redundant would be a short-sighted decision and does not reflect the progress made, the value I bring or the future potential of our operations.

Since joining Ceva in June 2024, I have focused relentlessly on delivering improvements in cost control, process efficiency and client satisfaction. In light of the following achievements and risks associated with discontinuing my role, I respectfully request a reconsideration or redeployment within the business.

Successfully implemented measures that have reduced labour costs by an average of $7,000 per month, equating to a projected $84,000 per annum. Ongoing plans are in place to deliver further reductions.

Identified and de-hired underutilised equipment (i.e 1x High reach $1,200 per month / $14,400 per annum), reducing unnecessary operational costs and aligning usage throughput demands.

Initiated cross-training across both teams to boost flexibility, eliminate single-point dependencies and improve daily responsiveness.

Worked in collaboration with BPE to fine-tune bulk storage layouts and inventory flows, creating further efficiencies and improving the site's financial performance.

Reduced a long-standing backlog of 110 overdue returns - some outstanding for over a year - to zero within 8 months, directly improving compliance and client satisfaction.

Rebuilt a previously strained Customer relationship through consistent communication and performance delivery, improving trust and long-term partnership viability.

It's also important to acknowledge that for much of this period, our team was operating without adequate support or strategic alignment from the wider business. Despite this, I continued to push forward and deliver these improvements under difficult circumstances. It now feels deeply unfair that the progress made, is not being fully recognised and instead, the decision is being taken to make my role (and possibly others) redundant.

I would also like to highlight the significant risks posed by the removal of this role at this time:

Many of the systems and routines currently in place - particularly those tied to return workflows, team flexibility and labour cost controls - have been custom-built and maintained under my direct supervision. Reducing or eliminating this oversight could disrupt operational continuity and undo recent gains.

My deep understanding of both site-specific challenges and Customer expectations, built over months of direct engagement, is not easily transferrable or replaceable. The momentum in several ongoing improvement projects may stall in my absence.

As the primary team leader on the floor, I've played a pivotal role in performance management, morale and upskilling. Removing this position could leave a leadership vacuum, undermining accountability and slowing decision-making during critical daily operations.

Given these outcomes, I am confident that I have demonstrated a strong alignment with the Company's goals of operational excellence, cost control and Customer satisfaction; also given the demonstrated value of my role and the risk of regression if that value is lost, I respectfully request the following be explored during this consultation:

• Opportunities for redeployment or retention in a revised capacity
• Flexibility in role scope that aligns with business objectives while preserving operational stability
• Further discussion around alternative cost-saving measures that may avoid redundancy altogether

In conclusion, I strongly urge you to please reconsider this proposal. My continued role in the business can support the delivery of long-term efficiencies and cost savings, far beyond the short-term gain of this redundancy. I am passionate about the work I do and the results I deliver. I remain fully committed to contributing positively to the company and am open to any discussions that allow me to continue supporting our shared goals.

Thank you again for your time, transparency and consideration. I look forward to further discussion.

[23] The significant difference concerns whether Ms Keteku then provided Ms Hornsell with a letter dated 10 June 2025 advising of her dismissal. Ms Hornsell gave evidence that is what occurred.[55] Ms Hornsell put this to Ms Keteku in cross-examination.[56] Ms Keteku rejected that proposition and gave evidence that a series of questions were asked by Ms Hornsell and answered by her prior to Ms Hornsell being provided the letter dated 10 June 2025 and advised of her dismissal.[57] Ms Hornsell gave evidence that she asked a series of questions in this meeting, however, she did not expressly explain when those questions were asked during the meeting.[58] For that reason, I prefer Ms Keteku's recollection that the questions were asked and answered prior to Ms Hornsell being provided with the letter dated 10 June 2025 and advised of her dismissal. In answer to questions from me,[59] Ms Keteku largely agreed with Ms Horsnell's recollection of the questions asked by Ms Hornsell that Ms Keteku answered. Ms Horsnell's recollection is reproduced below:

• Asked: Was a skills matrix or selection criteria used to determine redundancy?
• Response: Yes.
• When I asked to see it, I was told You are not privy to see that.
• Asked: What efforts have been made to find me another role within the business?
• Response: There's just no current vacancies.
• Asked: Are there any upcoming roles I could be considered for?
• Response: No.
• Asked: Could retraining or upskilling allow me to take on a different role?
• Response: What do you mean 'retrain'?
• I explained, suggesting consolidating departments or roles and training me to cover both - the answer was a flat No.
• Asked: Who will take over my responsibilities?
• Response: Jeremy (Site Manager) will absorb your role.

[24] The parts of Ms Hornsell's recollection that Ms Keteku disagreed with are identified in italics above. These differences are minor and are not determinative with respect to any matters that I am required to take into account under section 387 or 389 of the FW Act. As such, I do not need to resolve this factual difference.

[25] I am satisfied that the meeting held on Tuesday 10 June 2025 was brief. In summary terms, Ms Hornsell read aloud the two page letter, there was some brief question and answer consistent with the largely agreed recollection of Ms Horsnell and Ms Keteku, and then Ms Hornsell was provided with a letter dated 10 June 2025[60] (10 June 2025 Letter) and advised of her dismissal. The 10 June 2025 Letter is reproduced in full below:

This letter is to advise you of the outcome from a recent review into NSW Contract Logistics organisational structure. As a result of this review your position as Operations Supervisor is no longer required and we have been unsuccessful in identifying another suitable role.

Regrettably, your role is made redundant with immediate effect, your final day with CEVA will be 10th June 2025. CEVA will pay out your notice period.

We want to make it clear that you have been a valuable employee and this termination is not a reflection of our satisfaction with your work performance.

In line with process, your final pay, including, notice payout, redundancy payment and any outstanding leave entitlements, will be paid to you by the end of the following week (subject to the return of company property).

Please find attached to this letter our estimate of your final pay.

In addition to the above payment and in order to assist you to secure employment beyond CEVA Logistics, you have access to the Two Month outplacement program with Prima Careers (flyer included) and ability to access our EAP services Telus on 1300 361 364.

We wish you all the best in your future endeavours.

[26] In the period from Thursday 5 June 2025 to Tuesday 10 June 2025, Ms Horsnell did not have her work issued laptop.[61] In that period, Ms Hornsell was on leave arising from her broken toe. Ms Keteku gave evidence, which I accept, that on Monday 4 June 2025 she reviewed CEVA's internal careers newsletter which is circulated each fortnight along with CEVA available job openings via a portal.[62] Attached to Ms Keteku's witness statement were the newsletters published on 20 May 2025,[63] 28 May 2025[64] and 6 June 2025.[65] There is a total of 18 vacant jobs with CEVA identified in those newsletters. These 18 jobs were vacant at or around the time of Ms Hornsell's dismissal. In her witness statement, Ms Keteku set out her opinion that Ms Hornsell could not have been reasonably redeployed to any of the 18 vacant jobs.[66]

[27] In the period from Thursday 5 June 2025 to Tuesday 10 June 2025, CEVA did not notify Ms Hornsell that any of those 18 jobs were vacant or notify Ms Hornsell of any other redeployment options. CEVA did not provide a copy of those newsletters to Ms Horsnell or provide Ms Hornsell with any detail whatsoever about any of those 18 jobs.[67]

[28] In the period from Thursday 5 June 2025 to Tuesday 10 June 2025, Ms Horsnell was unable to access CEVA's internal careers network via the portal. That is because Ms Horsnell did not have her work issued laptop.[68] I accept that Ms Keteku and CEVA assumed that Ms Horsnell had her work issued laptop and was able to access CEVA's internal careers network via the portal during this period.[69]

[29] Ms Horsnell's dismissal took effect on 10 June 2025. Ms Horsnell was paid four weeks notice,[70] which is consistent with her contract of employment.[71] There was no redundancy pay made to Ms Hornsell,[72] which given her period of continuous service with CEVA was less than 1 year is consistent with section 119 of the FW Act.

[30] The meaning of genuine redundancy is defined at section 389 of the FW Act. Section 389 of the FW Act is reproduced below:

(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.

[31] Section 389 of the FW Act is clear.[73] In order for Ms Horsnell's dismissal to be a genuine redundancy, each of the three requirements of section 389 must be satisfied. The three requirements of section 389 are considered below.

Whether CEVA no longer required Ms Horsnell's job to be performed by anyone because of changes in the operational requirements of CEVA's enterprise: Section 389(1)(a)

[32] The first requirement of section 389 is section 389(1)(a). There are two parts to section 389(1)(a). The first part is whether the person's employer no longer required the person's job to be performed by anyone. The second part only arises for consideration if the first part is satisfied. The second part is that the job is no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. That is, the second part is concerned with the reason/s for the job being no longer required. Both parts of section 389(1)(a) must be satisfied.

[33] The first part of the section 389(1)(a) was considered by a Full Bench of the Commission in Ulan Coal Mine Limited v Henry Jon Howarth and others [2010] FWAFB 3488 (Ulan). The Full Bench in Ulan observed that section 389(1)(a) refers to a person's "job".[74] The Full Bench went on to distinguish the person's job from the duties performed by the person.[75] A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee.[76] The effect of the decision of the Full Bench in UIan is that the first part of section 389(1)(a) must be approached by answering whether CEVA no longer required Ms Horsnell's job - as so defined - to be performed by anyone.

[34] Ms Horsnell contended that the requirement of section 389(1)(a) was not satisfied. In summary terms, Ms Horsnell contended that her duties did not disappear and that they were simply redistributed to others. Ms Horsnell contended that the workload and operational needs still existed and that several of the core responsibilities performed by Ms Horsnell continued to be performed.[77]

[35] On application of Ulan, the enquiry posed by the first part of section 389(1)(a) is to be determined by reference to Mr Horsnell's "job". Ulan draws a distinction between a person's job and their duties. It is irrelevant whether the duties that Ms Horsnell performed continue to be performed and /or whether those duties have been redistributed to others. As explained above, I am satisfied that the duties formerly performed by Ms Horsnell have been redistributed. It is also irrelevant whether the workload and operational needs still existed, or that several core responsibilities continue to be performed. The enquiry is focused on the job, not the duties. The job performed by Ms Horsnell was that of Operations Supervisor at 100 Lockwood. On the material before me, I am satisfied that job, and three other management jobs, were determined by CEVA to be no longer required to be performed by anyone. It is clear that CEVA no longer required Ms Horsnell's job to be performed by anyone.

[36] The second part of section 389(1)(a) requires that Ms Horsnell's job was no longer required because of changes in the operational requirements of CEVA. The FW Act does not define the term "operational requirements". Operational requirements has been held to be a broad term that permits consideration of many matters including, but not limited to, past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve the efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.[78]

[37] I accept Mr Turra's evidence that the restructure, which resulted in Ms Horsnell's redundancy, was a business decision taken to improve the profitability of 100 Lockwood and several other warehouses in New South Wales. This reason can be comfortably characterised as being because of changes in operational requirements.

[38] For those reasons, I am satisfied that the requirement of section 389(1)(a) of the FW Act has been met.

Whether CEVA has complied with any obligation in a modern award or enterprise agreement that applied to consult about the redundancy: Section 389(1)(b)

[39] Neither party submitted that an enterprise agreement applied.

[40] Ms Horsnell submitted that the RTD Award applied to her employment with CEVA.[79] CEVA submitted that a modern award, including the RTD Award, did not apply.[80]

[41] On application of the settled principles used to interpret an award,[81] I am satisfied that Ms Horsnell was covered by the RTD Award. The coverage term of the RTD Award is found at clause 4. The RTD Award is an industry award. The industry is the road transport and distribution industry, which is defined at clause 4.2 of the RTD Award. CEVA accepted that it is an employer in the road transport and distribution industry as defined, and that Ms Horsnell worked at a distribution facility.[82] The RTD Award defines a distribution facility at clause 2.

[42] There is a further requirement that must be satisfied to be covered by the RTD Award. That is, the employee must fall within one of the classifications listed in Schedule A or Schedule B of the Award. Ms Horsnell does not fall within a classification in Schedule B of the Award. There are four classifications listed in Schedule A: Distribution facility employee level 1, Distribution facility employee level 2, Distribution facility employee level 3 and Distribution facility employee level 4. Ms Horsnell does not fall within the classification of Distribution facility employee level 1, level 2 or level 3. The Skills / Duties of a Distribution facility employee level 4 are reproduced below:

(a) Implements quality control techniques and procedures.

(b) Understands and is responsible for a distribution facility or a large section of a distribution facility.

(c) Possesses a highly developed level of interpersonal and communication skills.

(d) Ability to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction.

(e) Exercises discretion within the scope of this level.

(f) Exercises skills attained through the successful completion of an appropriate certificate and must be competent to perform one or more of the following tasks or combination of tasks:

1. liaising with management, suppliers and customers with respect to distribution facility operations;
2. detailing and co-ordinating activities of other distribution facility workers; or
3. maintaining control registers including inventory control and being responsible for the preparation and reconciliation of regular reports or stock movement, dispatches, etc.

[43] The structure of the Skills / Duties of the Distribution facility employee level 4 is identical to the structure of the Skills / Duties of the Distribution facility employee level 1, level 2 and level 3. What can be described as the Skills of each classification level are set out at (a) - (e), and the Duties of each classification level are set out at (f). The Skills are expressed with a high degree of generality. The Duties require the employee to be competent to perform one or more of the tasks set out in (f). It follows that the Duties set out at Schedule A are indicative only. The classification levels at Schedule A have been expressed with such a high degree of generality and by describing the Duties in indicative terms to avoid employees in an industry as large as the road transport and distribution industry falling outside of award coverage.

[44] There is some repetition of the core skills in the classification structure found at Schedule A. For example:

(i) A Distribution facility employee level 1 works in a team environment and / or under routine supervision (A.1.1(b)). (emphasis added).

(ii) A Distribution facility employee level 2 is able to co-ordinate work in a team environment under limited supervision (A.2.1(b)). (emphasis added).

(iii) A Distribution facility employee level 3 may perform work requiring minimal supervision either individually or in a team environment (A.3.1(e)). (emphasis added).

(iv) A Distribution facility employee level 4 has the ability to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction (A.4.1(d)). (emphasis added).

(i) A Distribution facility employee level 1 possesses basic interpersonal and communication skills (A.1.1(e)). (emphasis added).

(ii) A Distribution facility employee level 2 possesses sound interpersonal and communication skills (A.2.1(d)). (emphasis added).

(iii) A Distribution facility employee level 3 possesses an advanced level of interpersonal and communication skills (A.3.1(b)). (emphasis added).

(iv) A Distribution facility employee level 4 possesses a highly developed level of interpersonal and communication skills (A.4.1(c). (emphasis added).

[46] It is clear that the classification levels are distinguished from each other by the more advanced application of such core skills.

[47] It is equally clear from considering the Skills / Duties of a Distribution facility employee level 4 against the Skills / Duties of Distribution facility employee level 1, level 2 and level 3 with those contextual matters in mind that a critical Skill / Duties that sets the level 4 employee apart from the level 1, level 2 and level 3 employee is the level 4 exercises responsibility for a distribution facility (or a large section thereof) and supervises and directs other employees. This is most obvious from A.4.1(b) and A.4.1(d). It is equally clear from the Duties of the level 4 when compared to the Duties of the level 1, level 2 and level 3. The level 1, level 2 and level 3 employees perform the 'hands-on' work that is performed in a distribution facility. The duties of a level 1 employee include storing and packing of goods and materials (A.1.1(f)(i)), and allocating and retrieving goods (A.1.1(f)(iii)). The duties of a level 2 employee include licensed operation of all appropriate materials handling equipment (A.2.1(e)(i)), and operation of a 3 to 6 tonne truck (A.2.1(e)(iii)). The duties of a level 3 employee include use of a VDU (A.3.1(f)(i)), operation of all materials handling equipment under license (A.3.1(f)(ii), and operation of a truck in excess of 6 tonnes up to and including 13.9 tonnes GVM (A.3.1(f)(iv). The duties of a level 4 employee are not 'hands-on'. The duties of a level 4 employee can be summarised as supervisory.

[48] These contextual matters point towards the Distribution facility employee level 4 classification being intended to cover supervisory employees that work in a distribution facility.

[49] At the hearing, CEVA did not submit that each of the Skills / Duties at (a) - (f) of A.4.1 had to be satisfied for an employee to fall within the Distribution facility employee level 4 classification. CEVA submitted that satisfaction was required of some, but not all, of those Skills / Duties.[83] I agree with that submission.

[50] There are five skills set out at A.4.1. At the hearing, CEVA conceded that Ms Hornsell's role required the application of two of those five skills. Namely, possesses a highly developed level of interpersonal and communication skills (A.4.1(c))[84] and exercises discretion within the scope of this level (A.4.1(e)).[85] CEVA submitted,[86] which I accept, that some skills are generic. With respect to the skill at A.4.1(d), CEVA conceded that Ms Horsnell's role required the ability to supervise and provide direction and guidance to other employees and that Ms Hornsell provided on-the-job training.[87] CEVA did not fully concede the skill at A.4.1(d) on the basis that Ms Horsnell's role did not require her to perform inductions.[88] That does not put Ms Horsnell's role outside of the skill in A.4.1(d). The essence of A.4.1(d) is the provision of supervision, direction and guidance to other employees, which CEVA concedes that Ms Horsnell's role required the application of that skill. The reference to on-the-job training and inductions in A.4.1(d) are examples of the provision of supervision, direction and guidance to other employees. This is clear from the inclusion of the words 'including the ability' in A.4.1(d). As such, even on CEVA's case, Ms Horsnell's role required the application of three of the five skills in A.4.1. I find that Ms Horsnell's role required the application of those three skills.

[51] No submissions were made by either party as to the skill in A.4.1(a), which is implements quality control techniques and procedures. On the material before me, including Ms Horsnell's position description,[89] I am not satisfied that Ms Horsnell's role required the application of that skill.

[52] The remaining skill is A.4.1(b), which is understands and is responsible for a distribution facility or a large section of a distribution facility. At the hearing, CEVA submitted that the site manager was responsible for the distribution facility.[90] The word responsible is defined to mean 'to have control and authority over something or someone and the duty of taking care of it, him or her'.[91] Numerous supervisory, managerial and executives of CEVA may be said to have control and authority over 100 Lockwood (or a large section thereof). The RTD Award must be read in context and to give effect to its evident purpose. The purpose of the classification structure in Schedule A is to delineate between employees that work in the relevant industry that are award covered and those employees that work in the relevant industry that are not award covered. Moreover, to prescribe an appropriately different rate of pay for the former by reference to their skills and duties. It is nonsensical to suggest that the RTD Award was intended to cover persons, such as Mr Turra and his superiors, who may be said to have control and authority over 100 Lockwood. This illustrates that the word responsible in A.4.1(b) cannot be read literally. Having regard to the purpose as explained, the word responsible must be interpreted to refer to an employee (working in the relevant industry) that is covered by the RTD Award. Such an employee will perform one or more of the duties in A.4.1(f) and be required to apply the skills in A.4.1. Such an employee does not need have ultimate or overall responsibility for the distribution facility. Such an employee needs only to have some responsibility for the distribution facility (or a large section thereof). It will be on a case-by-case basis as to whether a particular employee has a sufficient degree of responsibility to enable a conclusion being drawn that the skill in A.4.1(b) is satisfied.

[53] It is clear from Ms Horsnell's position description[92] that her role required an understanding and responsibility for 100 Lockwood. The job purpose of Ms Horsnell's role as set out in her position description has been set out above and reproduced again below:

To lead, direct and take responsibility for operational activities in a safe and efficient manner including meeting all statutory requirements, service delivery, operational efficiency and cost control and meet Profit & Loss, EBITDA & Service KPI objectives. (emphasis added).

[54] The position description also records the key accountabilities of Ms Horsnell's role. There are 11 key accountabilities. They are detailed in order of importance. The first (and most important) key accountability is reproduced below:

Responsible for overseeing the safe and efficient day to day operations at the site. To lead and develop a culture focusing on safety, service and operations excellence and promote a culture of self-resolution. (emphasis added).

[55] That material clearly demonstrates that Ms Horsnell was responsible for 100 Lockwood. I am satisfied that Ms Horsnell's role required an understanding and a sufficient degree of responsibility to enable a conclusion being drawn that the skill in A.4.1(b) is satisfied.

[56] The duties of a Distribution facility employee level 4 are set out at A.4.1(f). It does not appear that Ms Horsnell had an appropriate certificate. However, A.4.1(f) is concerned with performing one or more of the tasks set out at (i) - (iii). Competency can be demonstrated through performing one or more of those tasks. At the hearing, CEVA conceded that Ms Horsnell performed the duties in (i) and (ii), and submitted it was questionable whether (iii) was performed by Ms Horsnell.[93] As such, even on CEVA's case, Ms Horsnell performed two of the three duties in A.4.1(f). I find that Ms Horsnell performed at least those two duties.

[57] For the reasons explained above, I am satisfied that Ms Horsnell's role required the application of four of the five skills in A.4.1 - (b), (c), (d) & (e). I am satisfied that Ms Horsnell performed at least two of the three duties in A.4.1(f) - (i) & (ii). The fact that one skill does not appear to have been required, one duty may not have been performed and Ms Horsnell does not appear to hold an unidentified but seemingly generic certificate does not necessarily put her outside of the level 4 classification. Having regard to these matters, I am satisfied that Ms Horsnell fell within the classification of Distribution employee level 4 and consequently within the coverage of the RTD Award.

[58] I have found that Ms Hornsell was covered by the RTD Award. There was no suggestion that the RTD Award did not apply to Ms Hornsell on any basis other than the question of coverage. I find that the RTD Award applied to Ms Hornsell's employment with CEVA. The effect is the question of whether CEVA complied with clause 30 of the RTD Award, which imposes an obligation to consult, must be considered. Clause 30 of the RTD Award is reproduced below:

30. Consultation about major workplace change

30.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

30.2 For the purposes of the discussion under clause 30.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

30.3 Clause 30.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

30.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 30.1(b).

30.5 In clause 30 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

[59] I have made factual findings above about the steps taken by CEVA to consult with Ms Horsnell about the redundancy.

[60] The consultation process commenced on Thursday 5 June 2025 with a meeting that Ms Horsnell attended with Ms Keteku and Mr Weatherby. The meeting was 'not long'. I have found that at this meeting, Ms Horsnell was given the 5 June Letter,[94] which was read at this meeting. I have found what was said at this meeting to be consistent with Ms Keteku's recollection given in examination-in-chief.[95]

[61] The consultation process concluded with another meeting with Ms Horsnell, Ms Keteku and Mr Weatherby on Tuesday 10 June 2025. Not including the weekend or public holidays, this was one day after the first meeting. This second and final meeting was brief. I have found at this meeting, Ms Horsnell read aloud a two page letter she had written,[96] which was followed by some very brief questions asked by Ms Hornsell and answered by Ms Keteku, and then Ms Horsnell was advised of her dismissal and provided with the 10 June 2025 Letter.[97]

[62] Based upon the factual findings that I have made, I am satisfied that CEVA met the following obligations under clause 30 of the RTD Award: clause 30.1(a), clause 30.1(b)(i) & (ii), and clause 30.2(a) & (b).

[63] I am not satisfied that CEVA met the obligation in clause 30.1(b)(iii), which provides that the employer must discuss with affected employees and their representatives (if any) measures to avoid or reduce the adverse effects of the change on the employees. One of the most obvious measures that an employer can take to avoid or reduce the adverse effects of potential redundancy is redeployment. In the two very brief meetings that were held with Ms Horsnell, CEVA failed to discuss redeployment (or any other measure) in such a way as to comply with the obligation in clause 30.1(b)(iii). I accept Ms Keteku's evidence that prior to the meeting on Thursday 5 June 2025 that she looked for an alternative position for Ms Horsnell.[98] However, Ms Keteku did not at the meeting on Thursday 5 June 2025 or at the meeting on Tuesday 10 June 2025 discuss with Ms Horsnell the steps that had been taken to locate an alternative position for Ms Horsnell or the results of those enquiries. Most critically, Ms Keteku did not seek to discuss or even raise with Ms Hornsell the 18 jobs that were vacant with CEVA at the time. Compliance with the obligation in clause 30.1(b)(iii) required CEVA to discuss those 18 jobs with Ms Hornsell during the consultation period. The approach of CEVA, and Ms Keteku in particular, to a discussion around redeployment (or any other measures to mitigate or reduce the adverse effects) was revealed through the cross-examination of Ms Keteku. In summary terms, CEVA's approach was that they had unsuccessfully looked for redeployment opportunities (or any other measures to mitigate or reduce the adverse effects) and the onus now fell to Ms Horsnell to propose redeployment opportunities (or other measures). This approach is evident from Ms Keteku's cross-examination[99] reproduced below:

PN645: And would you accept that an employer serious about redeployment normally provides a vacancy list at the time and right to reply? ---

Ms Keteku: Hence why when we had the meeting on the 5th, I advised you to review through the careers and look at other options that we may not have considered**.**

PN 646: And were any adjustments to the applicant's duties, hours or location discussed as an alternative to termination? ---

Ms Keteku: As I advised you, we gave you the option to come back to us with other options that we had not considered.

[64] The error with the approach taken by CEVA is that CEVA did not discuss or otherwise notify Ms Horsnell of the options that it had considered. Compliance with the obligation in clause 30.1(b)(iii) required CEVA to discuss with Ms Horsnell the options that it had considered, seek Ms Horsnell's views on those options, give Ms Hornsell a reasonable opportunity to raise any further measures to avoid or reduce the adverse effects of the change and give genuine consideration to any such measures raised by Ms Hornsell. On the material before me, CEVA did not take those steps.

[65] I am not satisfied that CEVA met the obligation in clause 30.2(c), which provides that the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including any other matters likely to affect employees. Such information is to be provided for the purpose of the discussion under clause 30.1(b). The relevant information that should have been provided by CEVA under this obligation included details about the 18 vacant jobs, such as the newsletters. Plainly, such information would have assisted with the discussions around measures to avoid or reduce the adverse effects of the change. The fact that CEVA wrongly assumed that Ms Horsnell had access to her work issued laptop and could access details about these 18 vacant jobs through the portal is irrelevant. The consultation clause in the RTD Award imposes obligations on the employer. Those obligations were not met. The employer's obligations cannot be met by assuming that the affected employees have the relevant information described in clause 30.2. It is obvious that the provision of that information to Ms Horsnell would have greatly assisted the discussion around measures to avoid or reduce the adverse effects of the change.

[66] For the reasons explained above, I am not satisfied that the requirement of section 389(1)(b) of the FW Act has been met. Accordingly, I find that Ms Horsnell's dismissal was not a genuine redundancy within the meaning of section 389 of the FW Act.

Whether it would have been reasonable in all the circumstances for Ms Horsnell to be redeployed within CEVA's enterprise or the enterprise of an associated entity of RICS: Section 389(2)

[67] A Full Bench of the Commission in Pykett explained that "for the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding."[100] A Full Court of the Federal Court of Australia in Helensburgh Coal[101] was concerned with whether redeployment would have been reasonable in all the circumstances and held:

[66] It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC's assessment of what "would have been reasonable in all [of] the circumstances".

[68] The High Court of Australia dismissed an appeal from the decision of the Full Court of the Federal Court of Australia in Helensburgh Coal.[102]

[69] An earlier Full Bench of the Commission in Honeysett[103] provided some guidance of a number of matters that may be relevant in determining whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. Those matters are non-exhaustive, but include the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee's residence and the remuneration which is offered.

[70] Ms Horsnell identified a series of jobs, positions or other work to which she contended it would have been reasonable in all the circumstances for her to be redeployed. I have considered whether it would have been reasonable in all the circumstances to redeploy Ms Horsnell to these jobs, positions or other work below. I have done so consistent with the authorities discussed above.

[71] One job, position or other work identified by Ms Horsnell was the Operations Supervisor role that Ms Taalili had been acting in since about August 2024.[104] I accept Ms Horsnell's evidence that given the work was similar that she had the necessary skills and experience to perform this job.[105] I accept Ms Horsnell's evidence that this job involved the same hours that Ms Horsnell had worked at the same warehouse.[106] Mr Turra gave uncontested evidence, which I accept, that the Operations Supervisor job that Ms Taalili had been performing on an acting basis came to an end in September 2025.[107] That was approximately three months after Ms Horsnell's dismissal. I do not accept that it would have been reasonable in all the circumstances for Ms Horsnell to be redeployed into a role that was only being performed on an acting basis and which ultimately came to an end three months after Ms Horsnell's dismissal.

[72] Through her cross-examination of Mr Turra, Ms Horsnell sought to rely upon a document she created that was said to evidence four available and upcoming supervisory or support roles at other CEVA sites. These roles were: Service Delivery Officer - Kemps Creek, Systems Analyst - Kemps Creek, Team Leader - Bollore Erskine Park, and Supervisor - Bollore Erskine Park. I received the document as an exhibit.[108] However, I cautioned Ms Horsnell that the assertions in that document would not be accepted unless she established the matters set out in that document as matters of fact.[109] I explained that one way that Ms Horsnell could establish those matters was through cross-examination of CEVA's witnesses. Notwithstanding that caution, Ms Horsnell did not cross-examine Mr Turra or Ms Keteku on the assertions made in this document that these four roles were available, or otherwise seek to prove as a matter of fact that those four roles were available. In closing submissions, CEVA disputed that any of those four roles were available and said that all such roles were occupied at the time of Ms Horsnell's dismissal.[110] I am not prepared to find that it would have been reasonable in all the circumstances for Ms Horsnell to be redeployed to any of these four roles based on contested submissions from the bar table without any evidentiary foundation, especially in light of the caution given to Ms Horsnell.

[73] As already explained, Ms Horsnell was unaware of the 18 vacant jobs[111] at the time of her dismissal. Ms Hornsell would have been altered to those 18 vacant jobs on reading Ms Keteku's witness statement. In her reply material filed after being served with Ms Keteku's witness statement (and the rest of CEVA's written material), Ms Horsnell did not refer to these 18 vacant jobs.[112] In particular, Ms Horsnell did not argue that it would have been reasonable in all the circumstances to be redeployed to any of those 18 vacant jobs. The same can be said for Ms Horsnell's closing oral submissions at the hearing.[113] At the conclusion of Ms Horsnell's closing oral submissions, I asked Ms Hornsell some questions about these 18 vacant jobs.[114] 11 of those 18 jobs were located in Victoria, 2 were located in Queensland, 1 was located in South Australia, 1 was located in Western Australia, and only 3 were located in New South Wales. 1 of the jobs based in New South Wales was Head of Air. Another of the jobs based in New South Wales was State Transport Manager in the Ground and Rail Division. I do not consider that Ms Horsnell had the skills or could acquire the necessary skills to perform either of those jobs with a reasonable period of retraining. The sole remaining job located in New South Wales was a Yardperson Level 2 at Minto. In answer to one of my questions, Ms Horsnell said that she would be prepared to take a pay cut in order to be redeployed to a Level 4 role. I seriously doubt that Ms Horsnell would have accepted a pay cut to be redeployed to a Level 2 role. As such, I am not satisfied it would have been reasonable in all the circumstances for Ms Horsnell to be redeployed to any of the 3 jobs located in New South Wales. In answer to another of my questions, Ms Horsnell said that she would have been prepared to move inter-state at her own expense to take some of the interstate positions. It is my overall assessment that Ms Horsnell moving inter-state at her own expense to take up one of these jobs was a possibility, but unlikely. This is a matter that could and should have been explored during the consultation process. There was also no evidence before me as to whether Ms Hornsell had the skills, or could acquire the skills, experience and any necessary qualifications to perform any of the inter-state jobs that she expressed interest in. There was no evidence before me as to the remuneration attached to any such jobs and the pay cut that Ms Horsnell would need to take to facilitate redeployment to such a job. These are matters that lead me to conclude on the very limited material put before me that it would not be reasonable in all the circumstances for Ms Horsnell to be redeployed to one of the 18 jobs.

[74] I am unable to identify any other job or position or other work within CEVA's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Ms Horsnell.

[75] For the reasons explained above, I am satisfied that the requirement in section 389(2) of the FW Act has been met.

[76] Ms Horsnell's dismissal was not a genuine redundancy within the meaning of 389 of the FW Act. That is because the requirement of section 389(1)(b) of the FW Act was not satisfied. As such, I dismiss the genuine redundancy objection raised by CEVA. In accordance with section 396(d) of the FW Act, I will now consider the merits of the application.

[77] 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.

[78] In an Appeal by B, C and D,[115] a Full Bench of the Commission discussed the phrase "harsh, unjust or unreasonable". The Full Bench held at [53]:

A determination as to whether a dismissal was harsh, unjust or unreasonable involves the application of a broad discretionary standard. The discretion is nevertheless one that must be exercised judicially, that is, in accordance with applicable legal principles...The classic statement of principle comes from the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

In Byrne v Australian Airlines (1995) 185 CLR 410 at 467 McHugh and Gummow JJ endorsed the observations of Sheppard and Heerey JJ in Bostik (Aust) Pty Ltd v Gorgevski (No 1) [1992] FCA 209; (1992) 36 FCR 20 at 28 in relation to the phrase "harsh, unjust or unreasonable":

"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."

[79] Each of the matters in section 387 of the FW Act must be considered and treated as a matter of significance in the decision making process.[116] However, the Commission is only required to consider those matters insofar as they are relevant to the factual circumstances of the particular case.[117] The weight given to each such relevant matter is a matter for the Commission in coming to an overall conclusion as to whether the dismissal was harsh, unjust or unreasonable.[118]

[80] The matters set out in section 387 of the FW Act are considered below.

Whether there was a valid reason for the dismissal related to Ms Horsnell's capacity or conduct (including its effect on the safety and welfare of other employees): Section 387(a)

[81] Ms Horsnell's dismissal was not related to her capacity[119] or conduct. This matter is not relevant to the circumstances of this application.

Whether Ms Horsnell was notified of that reason: Section 387(b)

[82] Proper consideration of section 387(b) requires a finding to be made as to whether Ms Horsnell has been notified of "that reason" - that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under section 387(a) - prior to the decision to dismiss being made.[120] Ms Horsnell's dismissal was not related to her capacity or conduct. I have not made a finding that there was a valid reason for Ms Horsnell's dismissal related to her capacity or conduct. Consequently, this matter is not relevant to the circumstances of this application.

Whether Ms Horsnell was given an opportunity to respond to any reason related to her capacity or conduct: Section 387(c)

[83] Ms Horsnell's dismissal was not related to her capacity or conduct. Consequently, this matter is not relevant to the circumstances of this application.

Any unreasonable refusal by CEVA to allow Ms Horsnell to have a support person to assist at any discussions relating to the dismissal: Section 387(d)

[84] This matter concerns any unreasonable refusal by the employer to allow the dismissed employee to engage the assistance of a support person. It does not impose a positive obligation on the employer to suggest that the employee may wish to engage the assistance of a support person.

[85] There was no unreasonable refusal by CEVA to allow Ms Horsnell to have a support person to assist at any discussions relating to the dismissal. This matter weighs against a conclusion that Mr Horsnell's dismissal was harsh, unjust or unreasonable.

If the dismissal related to unsatisfactory performance by Ms Horsnell - whether Ms Horsnell had been warned about that unsatisfactory performance before the dismissal: Section 387(e)

[86] Ms Horsnell's dismissal did not relate to unsatisfactory performance. This matter is not relevant to the circumstances of this application.

The degree to which the size of CEVA's enterprise would be likely to impact on the procedures followed in effecting the dismissal: Section 387(f)

[87] CEVA is not a small enterprise. It has approximately 2,232 employees[121]. In terminating the employment of an employee by reason of redundancy, CEVA should have been capable of meeting the obligation under the RTD Award to consult.

[88] The size of CEVA's enterprise is a matter that I have taken into account in considering the procedures followed in effecting Ms Horsnell's dismissal and my ultimate conclusion as to whether Ms Horsnell's dismissal was harsh, unjust or unreasonable.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would likely to impact on the procedures followed in effecting Ms Horsnell's dismissal: Section 387(g)

[89] CEVA had dedicated human resource management specialists or expertise. The dedicated human resource specialists and expertise should have been capable of assisting CEVA to meet its obligation under the RTD Award to consult.

[90] This is a matter that I have taken into account in considering my ultimate conclusion as to whether Ms Horsnell's dismissal was harsh, unjust or unreasonable.

Any other relevant matters that the FWC considers relevant: Section 387(h)

[91] I am satisfied that CEVA's failure to comply with the obligations in the RTD Award to consult is a matter that weighs in favour of a conclusion that Ms Horsnell's dismissal was harsh, unjust or unreasonable. CEVA's failure to comply with these obligations meant that redeployment (or other measures to avoid or reduce the adverse effects) were not properly discussed or explored. It has been held that it is unnecessary to demonstrate that the outcome may have been different to treat the denial of procedural fairness as a significant matter.[122] I consider that principal to be equally applicable where a dismissal has occurred by reason of redundancy in circumstances where the employer has failed to comply with an obligation to consult. As a general proposition, it would appear difficult for an employer to succeed on a merits argument that a dismissal is not harsh, unjust or unreasonable in circumstances where it has dismissed an employee by reason of redundancy and failed to comply with an obligation in an industrial instrument to consult.

Overall conclusion whether Ms Horsnell's dismissal was harsh, unjust or unreasonable

[92] I have taken into account and made findings with respect to each of the matters in section 387 that are relevant to the circumstances of this application.

[93] I have found that there is one matter that weighs against a conclusion that Ms Horsnell's dismissal was harsh, unjust or unreasonable. That being, the matter considered under section 387(d). I have found there is one matter that weighs in favour of a conclusion that Ms Horsnell's dismissal was harsh, unjust or unreasonable. That being, the matter considered under section 387(h).

[94] Having considered and weighed each of the relevant matters in section 387 of the FW Act both individually and collectively, I am satisfied that Ms Horsnell's dismissal was harsh, unjust or unreasonable. Consequently, and consistent with my findings made above with respect to section 385(a), (c) & (d) of the FW Act, I find that Ms Horsnell was unfairly dismissed. My consideration as to remedy is set out below.

[95] The question whether to order a remedy in a case where a dismissal has been found to unfair is a discretionary one.[123]

[96] Ms Horsnell does not seek reinstatement. I am satisfied that reinstatement is inappropriate.

[97] The effect of section 390(3)(b) of the FW Act is that the Commission must not order the payment of compensation unless satisfied that an order for the payment of compensation is appropriate in all the circumstances of the case. A Full Bench of the Commission has found that given the statutory purpose of the compensation power, the issue of financial loss is a centrally relevant matter that the Commission should consider in determining whether an order for the payment of compensation is appropriate in all the circumstances of the case.[124] Ms Horsnell gave unchallenged evidence, which I accept, that she has experienced significant financial loss arising from her dismissal.[125] In all the circumstances, I consider that an order for the payment of compensation is appropriate.

[98] Section 392(2) of the FW Act provides that in determining an amount of compensation, the Commission must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

[99] A Full Bench of the Commission in Double N Equipment Hire Pty t/a A1 Distributions v Alan Humphries[126] (Double N Equipment v Humphries) explained how an amount of compensation ordered under section 392 of the FW Act is to be determined. The Full Bench held (citations omitted):

[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed...

[17] The identification of this starting point amount "necessarily involves assessments as to future events that will often be problematic". Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee's misconduct and the application of the cap of six months' pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.

[100] The matters set out in section 392(2) of the FW Act are considered below.

The effect of the order on the viability of CEVA's enterprise: Section 392(a)

[101] CEVA did not present any evidence about the effect of any order on the viability of the enterprise. CEVA did not make a submission that there would be any effect on the viability of CEVA if an order of compensation was to be made.

[102] Having regard to the size of CEVA, I am satisfied that that an order of compensation would have no effect on the viability of CEVA. This is a matter that weighs in favour of there being no deduction in the amount of compensation.

The length of Ms Horsnell's service with CEVA: Section 392(b)

[103] Ms Horsnell was employed by CEVA for just short of one year. That is a short period of employment. In the circumstances of this application, I consider this to be a neutral matter in determining the amount of compensation.

The remuneration that Ms Horsnell would have received, or would have been likely to receive, if Ms Horsnell had not been dismissed: Section 392(c)

[104] A Full Court of the Federal Court of Australia held: "In determining the remuneration that the employee would have received, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts...In each case, it is necessary for the Commission to address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination".[127]

[105] I am satisfied that if Ms Horsnell had not been unfairly dismissed, her employment with CEVA would have likely continued for a period of 4 weeks. That is the period of time that I consider would have been required for CEVA to comply with its obligations under the RTD Award to consult with Ms Horsnell. After such a period of consultation, it is likely that Ms Horsnell's employment would have ended by reason of redundancy.

[106] A longer period of employment is only possible if Ms Horsnell had been redeployed. For the reasons explained above, there was no possibility of Ms Horsnell being redeployed to the Operations Supervisor role performed by Ms Taalili on an acting basis or the four jobs identified by Ms Hornsell in Exhibit A2. In terms of the 18 vacant jobs, it is my overall assessment that redeployment to any of those jobs was no more than a possibility. There were many variables and challenges to redeployment. The most obvious being the necessity for Ms Horsnell to move inter-state at her own expense and / or take a pay cut. It is also unclear whether Ms Horsnell had the skills, or could acquire the skills, experience and any necessary qualifications to perform the jobs that she expressed an interest in. In those circumstances, I do consider it unlikely that Ms Horsnell would have been redeployed. Ms Horsnell's employment with CEVA was likely to end after a period of 4 weeks to comply with the consultation obligations under the RTD Award.

[107] Ms Horsnell was paid a gross annual salary of $96,710.00.[128] That does not include superannuation.[129] That equates to a gross weekly wage of $1,859.81, excluding superannuation. The remuneration that Ms Horsnell would have received, or would have been likely to receive, if she had not been unfairly dismissed is a gross amount of $7,439.23, plus superannuation. That equates to four weeks' wages.

The efforts of Ms Horsnell (if any) to mitigate the loss suffered because of his dismissal: Section 392(d)

[108] Ms Horsnell gave unchallenged evidence in her witness statement, which I accept, that she had applied for over 30 roles in the logistics and operations sector without success.[130] By the time of the hearing, Ms Horsnell advised that she had applied for 50 roles without success.[131]

[109] I am satisfied that Ms Horsnell has made a genuine attempt to mitigate the loss. This is a matter that weighs in favour of there being no deduction in the amount of compensation.

The amount of any remuneration earned by Ms Horsnell from employment or other work during the period between the dismissal and the making of the order for compensation: Section 392(e)

[110] Ms Horsnell gave unchallenged evidence in her witness statement, which I accept, that she has not earned any remuneration from employment or other work during the relevant period.[132] Ms Horsnell has been forced to rely on savings, defer mortgage payments and is reliant on unemployment benefits.[133] I can appreciate this has placed considerable strain on Ms Horsnell who is a single parent.[134]

[111] No deduction is required from the amount of compensation.

The amount of any income reasonably likely to be so earned by Ms Horsnell during the period between the making of the order for compensation and the actual compensation: Section 392(2)(f)

[112] I am unaware of any income reasonably likely to be earned by Ms Horsnell in this period. No deduction is required from the amount of compensation.

Any other matters that the FWC considers relevant: Section 392(2)(g)

[113] The parties did not identify any other such matters. I am unable to identify any other such matters.

[114] In determining the amount of compensation, I apply the principles endorsed by the Full Bench of the Commission in Double N Equipment v Humphries. The Full Bench confirmed that the amount of compensation is to be determined by applying the "Sprigg formula". The Full Bench confirmed that the "Sprigg formula" was not the only matter to be considered, but also the matters in section 392 needed to be considered along with the overarching requirement that the amount of compensation is appropriate having regard to all the circumstances of the case. The "Sprigg formula"64 has four steps, which are:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[115] I have estimated that the remuneration Ms Horsnell would have received, or have been likely to have received, if CEVA had not terminated the employment (remuneration lost) was an amount of $7,439.23, plus superannuation. This is the first step in the "Sprigg formula".

[116] There are no monies to be deducted in accordance with the second step in the "Sprigg formula".

[117] Contingencies only apply to the anticipated period of employment. The anticipated period of employment was 4 weeks. I am not satisfied that a deduction should be made to the amount of compensation on account of contingencies. This is the third step in the "Sprigg formula".

[118] On application of steps 1 - 3 of the "Sprigg formula", I determine that the amount of compensation is a gross amount of $7,439.23 plus superannuation. In terms of step 4 of the "Sprigg formula", I have considered the impact of taxation and have elected to determine the amount as a gross amount plus superannuation and leave taxation for determination.

[119] In determining that the amount of compensation is a gross amount of $7,439.23 plus superannuation by reference to the "Sprigg formula", I have taken into account the matters specified at section 392(2)(c). In taking into account the other matters specified at section 392(2), I have found that there should be no deduction under section 392(2)(a), 392(d), 392(e), or 392(f). I have found that the matters specified at section 392(b) is a neutral consideration, and that there are no matters to be considered under section 392(2)(g). Taking into account all of the matters specified at section 392(2), I am satisfied that a gross amount of compensation of $7,439.23 plus superannuation is appropriate in all the circumstances of this case.

[120] I am not satisfied that any misconduct on Ms Horsnell's part contributed to her dismissal. It follows that there is no need for a reduction to the amount of compensation under section 392(3) of the FW Act. Consistent with section 392(4) of the FW Act, the amount of compensation cannot and does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt.

[121] Given Ms Horsnell's total amount of remuneration, the compensation cap within the meaning of section 392(5) of the FW Act is an amount of $48,355. The amount of compensation to be ordered is a gross amount of $7,439.23, plus superannuation. That amount does not exceed the compensation cap.

[122] Having taken into account all of the matters in section 392(2), and the requirements of section 392(3) - (5) of the FW Act and after applying the "Sprigg formula", I have determined that the amount of compensation to be ordered is a gross amount of $7,439.23, plus superannuation. I am satisfied that amount is appropriate having regard to all the circumstances of this case. I determine that the amount of compensation to be ordered is a gross amount of $7,439.23, plus superannuation.

[123] I find that Ms Horsnell's dismissal was not a genuine redundancy. I find that Ms Horsnell's dismissal was harsh, unjust or unreasonable. Consequently, I find that Ms Horsnell was unfairly dismissed. I am satisfied that an order for the payment of compensation is appropriate in all the circumstances of this case. The amount of compensation to be ordered is a gross amount of $7,439.23, plus superannuation. An order will be issued separately to this decision.

[1] Digital Hearing Book (DHB), pages 22, 27. PN748, PN866 - PN867.

[11] Paragraph 4 of witness statement of Caycee Horsnell dated 28 July 2025 (Horsnell Statement), DHB page 30, Paragraph 4 of the witness statement of Nana Ama (Rita) Agyepomaa Keteku dated 1 October 2025 (Keteku Statement), DHB page 79.

[14] Paragraph 4 of the Horsnell Statement, DHB page 30, paragraph 4 of the Keteku Statement, DHB page 79, Exhibit R3.

[15] Paragraph 4 of the Horsnell Statement, DHB page 30.

[18] Exhibit R3. Albeit that in the case of the Telstra Kemps Creek warehouse, it was the Operations Manager.

[22] Paragraph 5 of the Keteku Statement, DHB page 79.

[23] Paragraph 7 of the witness statement of Felipe Turra dated 6 October 2025 (Turra Statement), DHB page 108.

[26] Paragraph 4 of the Turra Statement, DHB page 108, PN190.

[27] Paragraphs 5 - 6 of the Turra Statement, DHB page 108.

[28] Paragraphs 7 - 9 of the Turra Statement, DHB pages 108 - 109, PN190.

[29] Paragraph 10 of the Turra Statement, DHB page 109.

[30] Paragraph 10 of the Turra Statement, DHB page 109.

[33] Paragraph 11 of the Turra Statement, DHB page 109.

[36] Paragraph 13 of the Turra Statement, DHB page 109.

[41] DHB page 28, paragraph 12 of the Keteku Statement, DHB page 80.

[42] Paragraph 12 of the Keteku Statement, DHB page 80.

[45] PN446 - PN447, PN492, PN494 - PN498.

[53] DHB page 28, PN98, Paragraph 14 of the Keteku Statement, DHB page 80, PN448.

[62] Paragraph 17 of the Keteku Statement, DHB page 81.

[66] Paragraph 17 of the Keteku Statement, DHB page 81.

[73] Helensburgh Coal Pty Ltd v Mr Neil Bartley and Mr Jake Bennett and Others [2022] FWCFB 166 at [32] - [33].

[78] Amy Veronica Greene v Floreat Hotel - CEH Group t/a Floreat Hotel [2021] FWC 2198 at [99], Amy Veronica Greene v Floreat Hotel - CEH Group t/a Floreat Hotel [2021] FWCFB 4103 at [22], Nettleford v Kym Smoker Pty Ltd [1996] IRCA 495, (1996) 69 IR 370, 373.

[79] DHB pages 33 - 34, 36 - 37, PN751 - PN758.

[80] Paragraph 21 of the Respondent's Outline of Submissions Jurisdictional Objection dated 6 October 2025 (RS), DHB page 121.

[81] Kestrel Coal Pty Limited v Odette Lennox [2025] FWCFB 114 at [8] - [13].

[100] Technical and Further Education Commission t/a TAFE NSW v L. Pykett [2014] FWCFB 714 at [36].

[101] Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45.

[102] Helensburgh Coal Pty Ltd v Neil Bartley and Others [2025] HCA 29.

[103] Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 at [28].

[115] [2013] FWCFB 6191.

[116] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [50].

[117] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [50].

[118] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51], Glenn Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [54].

[119] Capacity was explained by a Full Bench of the Commission in Glenn Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42].

[120] Mark Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19], Glenn Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55] - [56].

[122] Mark Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [25].

[123] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9].

[124] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550 at [20].

[126] [2016] FWCFB 7206.

[127] He v Lewin [2004] FCAFC 161 at [58].

Printed by authority of the Commonwealth Government Printer