s.394 - Unfair dismissal

Application for an unfair dismissal remedy -- genuine redundancy

• [1] Mr Donald Gordon was employed by Deluxe Products Pty Ltd (Deluxe Products) as a Driver from 30 August 2023 until 1 July 2025. On 18 July 2025, Mr Gordon applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Gordon is protected from unfair dismissal because the minimum employment period of at least 6 months has been completed; his employment was covered by a modern award; and his annual rate of earnings was below the high-income threshold. At the time of dismissal, Deluxe Products was not a small business employer and the Small Business Fair Dismissal Code did not apply.

• [2] Deluxe Products objects to the application on the basis that the dismissal was a case of genuine redundancy.

1. Whether the dismissal was a case of genuine redundancy, and
2. If not, whether the dismissal harsh, unjust or unreasonable (such that Mr Gordon was unfairly dismissed).

• [4] For the reasons that follow, I am not satisfied that the dismissal was a genuine redundancy or that Mr Gordon was unfairly dismissed. The application will be dismissed.

• [5] No submissions or witness statements have been filed in support of the parties' respective cases. Deluxe Products has filed documents pertaining to the employment relationship and those establish that, relevantly:

1. Mr Gordon was employed as a casual delivery driver on 30 August 2023 under the General Retail Industry Award 2020 (the Award).
2. Mr Gordon's employment was converted to full-time on 11 March 2024.
3. Mr Gordon was paid $32.00 per hour plus superannuation.
4. Deluxe Products dismissed Mr Gordon on the grounds of redundancy on 1 August 2025.
5. Following the termination of his employment, Mr Gordon was paid 4 weeks' redundancy pay and 2 weeks' wages in lieu of notice on termination, as well as accrued annual leave.

• [6] The only document filed in support of Mr Gordon's case is his application. It alleges that the redundancy was not a genuine redundancy due to lack of consultation and lack of any genuine attempt to redeploy him. It asserts that the work Mr Gordon performed was still required to be done. Some of the facts asserted in the application appear to be incorrect, such as start and finish dates and the period of continuous service. The application is unreliable as an evidentiary source.

• [7] An attachment to the application form alleges that Mr Gordon took a week of leave from work due to the funeral of his former mother-in-law; that this leave was approved; that Deluxe Products subsequently contacted him to advise of its belief that he had abandoned his employment; and that upon his return to work, he was called into a meeting and handed a letter of termination.

• [8] The response form filed by Deluxe Products seeks to contradict these allegations by asserting that following a review of operational requirements, Mr Gordon's role was determined to be no longer required on a full-time basis; that no suitable alternative position was available at the time; and that consultation was undertaken in compliance with the Award.

Was the dismissal a case of genuine redundancy?

• [9] Section 389 of the Act provides the meaning of 'genuine redundancy'. A person's dismissal will be a case of genuine redundancy if:

1. Their employer no longer required their job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
2. The employer complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [10] Clause 34 of the Award deals with consultation about major workplace changes in the workplace that are likely to have significant effects on employees. There is a question in this case about whether the clause applied to the redundancy of Mr Gordon, if his role was the only one that was affected by the asserted review of operational requirements.

• [11] The difficulty is that no submissions were made on the issue, and there is no evidence other than the Employment Separation Certificate to confirm facts of relevance to Mr Gordon's redundancy. Even that certificate appears to be affected by error as it provides for a termination date of 15 August 2025, which I assume (without finding) reflects the end of the fortnight after termination of employment, during which Mr Gordon's employment entitlements were paid.

• [12] In the absence of evidence about the circumstances leading to the decision to make Mr Gordon's position redundant, or the process to give effect to that decision, I am not satisfied that the dismissal was a case of 'genuine redundancy'.

Was the dismissal harsh, unjust or unreasonable?

• [13] Section 387 of the Act requires the Commission to take into account certain matters in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable. I deal with each in turn.

• [14] There is no evidence to satisfy me as to whether there was a valid reason for dismissal. A reference was made from the bar table about Mr Gordon taking a lot of leave during his employment. Leave records and payslips were filed by Deluxe Products in response to the application. Without submissions or a witness statement to explain the relevance of these documents to the application for an unfair dismissal remedy, I am not satisfied that they are relevant to the dismissal. No proper foundation exists for any findings to be made about them other than to the extent that they confirm the facts described in paragraph [5] above.

• [15] There is no evidence about whether Mr Gordon was given an opportunity to respond to any such capacity or conduct related reason, if indeed one existed.

• [16] There is no evidence of any request for, or refusal of, the participation of a support person in discussions about the dismissal.

• [17] There is no evidence of warnings about unsatisfactory performance. The assertion in its response to the application from Deluxe Products is that the redundancy decision was not related to performance or conduct.

• [18] Deluxe Products is a business of reasonable size. There is no evidence that either its size or access to human resources management specialists or expertise was a material factor in the procedures followed to give effect to the dismissal.

• [19] In terms of other potentially relevant matters, Mr Gordon asserts that he was 52 years of age at the time of dismissal. His length of service was less than 2 years. The attachment to the application alleges dismissal in connection with the taking of approved leave while indicating the existence of a dispute about whether the leave was in fact approved. These matters would be relevant to the merits of the case if there were evidence to support them, as would the potential availability of an inference that termination was for reasons other than redundancy.

• [20] In other words, there is no evidence about the circumstances of the dismissal or the processes to give effect to the dismissal. In the circumstances, I am unable to be satisfied that the dismissal was harsh, unjust or unreasonable. It follows that no finding of unfair dismissal can be made.

• [21] The jurisdictional objection on the grounds of genuine redundancy is dismissed.

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