What happened

This is a Fair Work Commission (FWC) decision by Deputy President Lake in an unfair dismissal application brought by Mr Cyril Doolah against his employer, Jassar & Manesh Pty Ltd trading as RockTrans ([1]). Mr Doolah was employed from 25 March 2019 until his employment ended on 15 April 2020 ([1]). He worked as a heavy rigid driver and principally performed deliveries under a Schweppes contract, although he also undertook other driving duties when Schweppes work was insufficient ([8]).

In or around February 2020 the Respondent lost the Schweppes contract ([9]). Around the same time the Respondent obtained a Linfox contract; to drive on that contract drivers had to be approved through Linfox's own process. Mr Doolah submitted the required documentation to Linfox, but Linfox did not accept him through that process, a decision the Respondent could not control ([10]–[11]). The Respondent sought to offer Mr Doolah alternative work, including through a sister company; the Applicant declined the offer and the Respondent paid him four weeks' pay as redundancy and terminated his employment ([12], [21]–[23]).

Mr Doolah applied for remedy under s 394 (unfair dismissal) within the statutory 21 day period and the Commission heard the matter on 18 August 2020. The Respondent raised a jurisdictional objection that the dismissal was a 'genuine redundancy' under s 389 of the Fair Work Act, which, if established, removes the Commission’s jurisdiction to determine an unfair dismissal claim ([3]–[5]). Deputy President Lake accepted the Respondent's contention and dismissed the application on the ground that the dismissal was a genuine redundancy ([24]–[25]).

Why the court decided this way

The statutory test the Commission applied is s 389 of the Fair Work Act, which provides that a person's dismissal is a genuine redundancy if (1) the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the enterprise, and (2) the employer complied with any consultation obligations in an applicable modern award or enterprise agreement. Section 389(2) also says a dismissal is not a genuine redundancy if it would have been reasonable to redeploy the person within the employer's enterprise or an associated entity.

The decision turns on two linked findings of fact and construction:

1. Factual finding that the operational change, loss of the Schweppes contract, was a change in operational requirements that removed the need for the applicant's particular job. Deputy President Lake concluded that "almost the entirety of the Applicant's job itself was the provision of services with respect to the Schweppes contract" and that, once lost, the job "was no longer required to be performed by anyone" ([16]). That factual assessment satisfies s 389(1)(a).

2. Constructional choice to treat the Applicant's 'job' narrowly. The Commission considered, as a possible alternative, a broader construction of the 'job' (i.e. a generic driver who could do Linfox work), but preferred a narrower, evidentiary construction focused on the actual duties the Applicant had been doing. The Commission reasoned that adopting a broad construction might unduly narrow the operation of s 389 in practice; therefore the narrower construction was applied and supported the conclusion that no one was required to perform that specific job after the contract was lost ([17]–[18]).

Turning to consultation and redeployment, the Commission accepted evidence that the Respondent consulted the Applicant about the contract loss, sought his qualification for Linfox (which was outside the Respondent’s control), identified alternate work (including in a sister company), and offered that work to the Applicant who declined it. Deputy President Lake found these steps satisfied the consultation and redeployment obligations under the applicable enterprise agreement clauses and s 389(1)(b) and s 389(2) ([20]–[23]).

Because both limbs of s 389 were satisfied on the evidence, the dismissal was a genuine redundancy and the Commission had no jurisdiction to consider the merits of the unfair dismissal claim ([24]–[25]).

Before and after state of the law

Before this decision, the statutory framework for genuine redundancy was the same: s 389 sets out the two-limbed test (operational change removing need for the job and compliance with award/agreement consultation obligations), and s 389(2) raises redeployment as a potential bar to genuine redundancy. This decision applies that statutory framework to a common factual scenario in the transport industry, reliance on particular client contracts for an individual employee's role.

This decision emphasises two interpretative points about the operation of s 389:

• The 'job' for s 389(a) may be properly construed narrowly and factually, focusing on the tasks the employee actually performed; that construction can lead to a genuine redundancy finding even where there remains other work in the business that a different worker (or a differently qualified driver) could do ([17]–[18]).

• Evidence that an employer consulted, sought to redeploy and offered suitable alternative employment (including in related or sister entities), and that the employee declined, may satisfy s 389(1)(b) and s 389(2) and sustain a genuine redundancy finding ([21]–[23]).

After this decision, the practical effect is to reinforce that loss of a dominant client contract that underpins an employee's specific duties will frequently satisfy s 389(1)(a) where the employer demonstrates consultation and reasonable redeployment efforts. The decision does not purport to alter or expand the statutory test; rather it demonstrates how to apply it factually.

Key passages with plain-English translation

1. Paragraph [16]:

   • Text: "In substance, almost the entirety of the Applicant's job itself was the provision of services with respect to the Schweppes contract. Once that contract was lost, the Applicant's job was no longer required to be performed by anyone."
   • Translation: The Commission found the employee's role was, for practical purposes, to service one client. When the company lost that contract, no role of that precise kind was needed any more.

2. Paragraph [17]–[18]:

   • Text: The decision records the alternative broader construction of 'job' (as simply 'a driver') but concludes: "Ultimately, I prefer the narrower construction which takes a more specific and evidentiary analysis of what constitutes the 'job' of the Applicant."
   • Translation: The judge opted to define the employee's job by reference to the specific duties he performed, not by a wide generic label. That narrower definition was decisive.

3. Paragraph [10]–[11]:

   • Text: The Linfox approval process "is not one influenced or controlled by the Respondent" and the applicant "was unsuccessful in becoming an approved driver for Linfox."
   • Translation: The inability to work on the new contract was not the employer's decision; it was an external, independent vetting process that the applicant failed.

4. Paragraph [22]:

   • Text: The employer "sought to deploy him into a role with a sister company for which he was suitable and had the relevant skills. He rejected this offer... I find that Rocktrans did follow the appropriate consultation process and endeavoured to redeploy Mr Doolah."
   • Translation: The employer tried to find alternate roles and properly talked to the employee about them; the employee refused the alternative and so redeployment was not reasonably possible.

What fact patterns trigger this precedent

This decision is most directly applicable where:

• An employee’s role is largely or entirely devoted to a single client contract or a narrowly defined set of tasks tied to a specific contract (cf [8], [16]).
• The employer loses the client contract and that loss materially removes the need for the employee's specific duties ([9], [16]).
• The employer obtains alternative contracts requiring particular approvals or qualifications that the employee cannot obtain, especially where the approval process is external to the employer ([10]–[11]).
• The employer can show it consulted with the employee, sought to redeploy the employee (including to related entities), and offered suitable roles which were declined by the employee ([21]–[23]).

If these elements are present, the Commission in this decision was prepared to find a genuine redundancy under a narrower conception of the 'job'.

How later courts have treated it

This FWC decision itself does not cite later authorities, nor does the text of the decision record any subsequent judicial treatment of it. The decision applies the statutory test in s 389 and is primarily fact-driven. To determine how later tribunals or courts have treated this particular decision, practitioners should consult an up-to-date case citator or legal database. The decision does, however, provide a clear example of applying a narrow, fact-based construction of 'job' and of what constitutes reasonable consultation and redeployment steps; later tribunals deciding similar fact patterns may find it persuasive.

Still-open questions

The judgment leaves room for further development and debate on several points:

1. The boundary between narrow and broad constructions of 'job': While the Commission preferred a narrow, evidentiary approach here, the judgment recognises a plausible argument for a broader approach ([17]). Future cases will clarify when a court or tribunal should adopt the broader construction and how to weigh competing constructions on different fact matrices.

2. The role of external vetting/approval processes: The Commission accepted that Linfox’s vetting was outside the employer's control and that an employer can rely on an employee's failure to obtain external approval as a factual impediment to redeployment ([10]–[11]). Questions remain about how vigorously an employer must pursue external approvals on an employee's behalf and whether there are circumstances in which an employer should be expected to use influence to obtain approvals.

3. Redeployment across associated entities and what is 'reasonable': The Commission accepted redeployment to a sister company where the employee was suitable ([22]). The precise limits of what constitutes 'reasonable' redeployment, considering terms, location, duties, and industrial arrangements, will be a recurring factual and legal issue.

4. Quantifying redundancy entitlements when the line between specific-job and broad-role constructions is unclear: If a tribunal adopts a broad role and finds no redundancy, the employee's remedies differ; conversely, a narrow approach can yield redundancy outcomes. Future guidance would be useful on transitional cases.

5. Interaction with enterprise agreements and modern awards: This decision found compliance with the Rocktrans Enterprise Agreement clauses 2.9 and 2.10; different agreement language or award terms might lead to different outcomes, so the specific content of consultation/redeployment clauses will matter in future disputes.

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This analysis is a statement of general legal information drawn from the cited decision. It is not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this material or any draft, get a qualified Australian lawyer to check it.