Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether dismissal was a case of genuine redundancy - not a genuine redundancy - whether dismissal harsh, unjust or unreasonable - no consultation - no explanation as to why applicant selected for redundancy - dismissal unfair - reinstatement not appropriate - compensation ordered

[1] Edmond Amaoko Adjei was employed as a Disability Support Worker with CDNI Care Pty Ltd. His employment commenced on 24 January 2023.

[2] In the first half of 2025, CDNI management informed staff that the company was experiencing financial difficulties. It raised the possibility of reducing employees' rates of pay, with the potential for redundancies for those employees who elected "not to accept redeployment under the revised terms". Mr Adjei corresponded with CDNI management about the possibility of taking a voluntary redundancy. On 5 May 2025, he received an email informing him that that was not then being contemplated.

[3] On 25 August 2025, Mr Adjei attended an all-staff meeting. At that meeting, the staff were informed that CDNI was experiencing financial difficulty; that an administrator had been appointed to assist in saving the business; and, CDNI's intention was to preserve employment and continue operations.

[4] On 26 August 2025, certain CDNI employees received a letter from Rajiv Ghedia of Westburn Advisory. In his letter, Mr Ghedia stated that he had been appointed as Voluntary Administrator of CDNI; that he had decided to continue trading CDNI's business, such that it was "business as usual"; and that he had "deemed it necessary" to effect an immediate reduction in employees' hourly rates of pay. The letter invited the employees to indicate their consent to remaining employed on the revised terms.

[6] However, on 28 August 2025, Mr Adjei received a letter from Mr Ghedia titled "Notice to Employees" and addressed "Dear Sir/Madam". The letter stated in part:

"I regret to inform you that your services are no longer required and your last day of employment will be today, Thursday 28 August 2025." (Emphasis in original)

[7] Mr Adjei was one of 10 CDNI employees who was dismissed on the basis of redundancy on 28 August 2025. A further 13 employees were dismissed on that basis on 8 September 2025. A total of 90 employees remained employed by the company, albeit on lower rates of pay.

[8] Prior to Mr Adjei receiving Mr Ghedia's letter of 28 August 2025, CDNI had not put him on notice that it was considering making his position redundant and had not consulted with him in that regard. CDNI did not explain to Mr Adjei why he was one of those who had been selected for redundancy.

• [9] On 9 September 2025, Mr Adjei filed an unfair dismissal application under section 394 of the Fair Work Act 2009.[1]

[10] On 19 September 2025, Westburn Advisory published a second report to CDNI's creditors in which it recommended that they agree to a proposed Deed of Company Arrangement (DOCA). Under the terms of the DOCA, Mr Adjei will receive payment in full of his outstanding entitlements to annual leave, payment in lieu of notice and redundancy pay. However, payment is not "projected" to be made until April 2028.

[11] On 25 September 2025, Mr Ghedia sent a letter to Mr Adjei titled "Notice to Employees" providing a summary of the "key points" of the DOCA. The letter confirmed that "Employee Entitlements are projected to be paid in full by April 2028" (emphasis in original).

[12] Attached to the letter was another letter, also dated 25 September 2025 but addressed specifically to Mr Adjei. That letter provided a calculation of Mr Adjei's entitlements to annual leave, payment in lieu of notice and redundancy pay. The letter invited Mr Adjei to inform Westburn Advisory whether he agreed or disagreed with the calculations. There is no evidence that Mr Adjei responded to that correspondence.

[13] An attachment to the second letter stated that Mr Ghedia had calculated Mr Adjei's average weekly wage in the six months prior to Mr Ghedia's appointment to be $554.85.

[14] At a creditor's meeting on 29 September 2025, CDNI's creditors resolved to execute the proposed DOCA. The DOCA was executed on 10 October 2025.

Was the dismissal a case of genuine redundancy?

• [15] Before considering the merits of Mr Adjei's application, I am required to decide four matters.[2] Three were not in dispute and I find as follows:

• (1) Mr Adjei was dismissed on 28 August 2025 and filed his unfair dismissal application on 9 September 2025. This was within the statutory time period;[3]
• (2) Mr Adjei was a person protected from unfair dismissal;[4] and
• (3) CDNI is not a small business employer.[5] It follows that the Small Business Fair Dismissal Code is not applicable.

• [16] The remaining threshold question is whether the dismissal was a case of genuine redundancy.[6] CDNI contended that it was. On that basis, it raised a jurisdictional objection to the application. For the following reasons, I reject the contention and dismiss the objection.

• [17] Relevantly for present purposes, a person's dismissal will be a case of genuine redundancy if:[7]

(1) 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

(2) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [18] I am satisfied as to the first requirement. CDNI submitted that it needed to urgently reduce employee wages and on-costs to secure its ongoing viability. This is consistent with the discussions in the first half of 2025 to which I have referred. Although CDNI did not explain to Mr Adjei why he had been selected for redundancy, the process by which such selections are made is not relevant to whether the dismissal was a genuine redundancy.[8]

• [19] Mr Adjei submitted that CDNI continues to provide the same services as it did prior to his dismissal, and that other employees continue to perform the same duties as he had performed. But this does not necessarily mean that his position was not redundant. A change in operational requirements can include a situation where "the employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five" or "the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists".[9]

[20] I find that CDNI no longer required Mr Adjei's job to be performed by anyone because of changes in the operational requirements of its enterprise.

[21] However, CDNI did not meet the second requirement. Mr Adjei was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (Award). Clause 8 of the Award is titled "Consultation about major workplace change". It imposes an obligation on an employer to consult if it "makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees". "Significant effects" are defined to include "termination of employment" or "major changes in the composition, operation or size of the employer's workforce". Under the terms of cause 8, CDNI was required to consult with Mr Adjei in relation to his redundancy.

[22] CDNI did not dispute that clause 8 imposed such a requirement. It submitted, though, that "[t]he immediate redundancies were required for the future viability of the Company and to allow the Company to return solvency. Without the immediate redundancy of the 23 employees, all 113 employees would have been terminated and the Company wound up." Be that as it may, the fact remains that CDNI failed to consult as required by the Award.

[23] Consequently, the dismissal cannot have been a case of genuine redundancy. I find accordingly.

• [24] Turning to the merits of the application, a person will have been unfairly dismissed if the Commission is satisfied of four things:[10]

(2) the dismissal was harsh, unjust or unreasonable;

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

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

[25] Consistent with the findings above, I am satisfied that Mr Adjei was dismissed; that the Small Business Fair Dismissal Code was not applicable; and that the dismissal was not a case of genuine redundancy. The only matter left to be determined is whether Mr Adjei's dismissal was harsh, unjust or unreasonable.

• [26] In determining that question, I am required to have regard to certain criteria, namely:[11]

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

• (2) whether Mr Adjei was notified of that reason. The reference to "that reason" is to the "valid reason" to which the first criterion refers;[12]

(3) whether Mr Adjei was given an opportunity to respond to any reason related to his capacity or conduct;

(4) any unreasonable refusal by CDNI to allow Mr Adjei to have a support person present to assist at any discussions relating to dismissal;

(5) if the dismissal related to unsatisfactory performance by Mr Adjei - whether he had been warned about that unsatisfactory performance before the dismissal;

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

(7) 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

(8) any other matters that the Commission considers relevant.

• [27] I am only required to have regard to these criteria to the extent to which they are relevant to the present case.[13]

• [28] The finding that I have made at [20] above supports the conclusion that Mr Adjei's dismissal was on redundancy grounds and did not relate to his capacity or conduct. CDNI did not contend that there was any other valid reason for Mr Adjei's dismissal. It follows that there cannot have been a valid reason for the dismissal related to Mr Adjei's capacity or conduct.[14] In the circumstances, it is appropriate that criterion (1) be regarded as a neutral factor.[15]

[29] The same conclusion must be reached in relation to criteria (2) and (3). They are each premised on the reason for dismissal being related to Mr Adjei's capacity or conduct.

[30] Criterion (4) requires consideration as to whether an employer unreasonably refused an employee's request to have a support person present to assist in any discussions relating to dismissal. That question does not arise in this case: there were no discussions between CDNI and Mr Adjei relating to his dismissal.

[31] Criterion (5) also has no bearing on this matter, as Mr Adjei was not dismissed for unsatisfactory performance.

[32] CDNI led no evidence in relation to the considerations arising in respect of criteria (6) and (7). There is no basis on which I could find that any unfairness in the dismissal can be attributed to, or ameliorated by, CDNI lacking available resources or expertise.

[33] As to criterion (8), I consider the following matters to be relevant:

(1) CDNI did not consult with Mr Adjei about his dismissal. The right to be consulted about a decision to reduce staffing numbers which may impact the ongoing employment of an employee is a substantive right and not merely perfunctory. Mr Adjei should have been consulted about the proposed redundancy and the consequent dismissal before his employment ended. I am not persuaded by CDNI's submissions that there was such urgency in reducing costs that there was no time to conduct any consultation.

(2) CDNI did not explain - either at the time of the dismissal or during these proceedings - why Mr Adjei was one of those selected for redundancy. CDNI led no evidence as to the process and selection criteria it adopted, other than to submit that its directors "undertook a review of the Company's business operations, participant need and employee roles, and identified the employees to be made redundant".

(3) There is no evidence that redeployment into another position with CDNI or a related entity was possible. For Mr Adjei to have remained employed, it would appear that someone else would have had to have been selected for redundancy in his place. In the circumstances, but for CDNI's failure to consult Mr Adjei, dismissal would otherwise have been a case of genuine redundancy and so would not have been regarded as unfair.

[34] Taking all of the matters into account, I consider that Mr Adjei's dismissal on redundancy grounds without consultation was harsh, and therefore unfair.

• [35] Given my earlier findings, I have the discretion to order Mr Adjei's reinstatement, or to order that CDNI pay him compensation.[16] I am not required to order one or the other; the question of whether to order any remedy is a matter within my discretion.[17]

• [36] Reinstatement is not appropriate in this case. Mr Adjei's position at CDNI had become redundant. There is no evidence on which I could base an order that he be reinstated to another position on terms and conditions no less favourable than those on which he was employed immediately before his dismissal.[18] CDNI submitted that none of the 23 positions made redundant had been reinstated. In any event, Mr Adjei did not seek reinstatement.

• [37] I am, however, satisfied that an order for payment of compensation is appropriate in all the circumstances of this case.[19] However, for the reasons which follow, the amount must be modest.

• [38] In assessing compensation, I am required to take into account all the circumstances of the case.[20] In doing so, I will adopt the well-established methodology for assessing compensation in unfair dismissal cases set out in Sprigg v Paul's Licensed Festival Supermarket[21] ("Sprigg"), as follows:

Step 1: Estimate the remuneration Mr Adjei would have received, or have been likely to have received, if CDNI had not terminated his employment (remuneration lost).

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that Mr Adjei receives the actual amount he would have received if he had continued in employment with CDNI.

• [39] Step 1 reflects the statutory requirement that the Commission take into account the remuneration that Mr Adjei would have received, or would have been likely to receive, had he not been dismissed.[22] This requires an estimation of his anticipated period of employment;[23] that is, how long he would have remained in employment but for the dismissal, and the remuneration he would have received, or been likely to receive, during that period.[24] There is an element of speculation in this counterfactual task, as it involves an assessment of what would have been likely to happen in the future had Mr Adjei not been dismissed. In making that assessment, I am required to consider the actual state of facts. In each case, it is necessary for the Commission to address itself to the question whether, if the dismissal had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means.[25]

[40] In this case, there is nothing to suggest that Mr Adjei would have remained employed with CDNI longer than it would have taken for the company to engage in consultation with him in accordance with the Award. I am not prepared to assume that had such consultation occurred, Mr Adjei would have secured ongoing employment with CDNI. I have had regard to CDNI's submissions as to its financial position at the time of the dismissal, and the need for it to implement significant and immediate changes to allow it to continue to trade. Even so, it was required to comply with its obligations under the Award.

[41] In broad terms, clause 8 of the Award required CDNI to do four things:

(1) give affected employees, including Mr Adjei, notice of the proposed changes;

(2) provide the affected employees with information in writing about the changes, including their nature, their expected effect on employees and any other matters likely to affect employees;

(3) discuss with the affected employees the introduction of the changes, the likely effect on employees and measures to avoid or reduce the adverse effects of the changes on employees; and

(4) give prompt consideration to any matters raised by the employees about the changes in the course of the discussion.

[42] There is no science as to how long this process should take; that will depend on the circumstances. A relevant circumstance in this case is that some, but not all, employees were offered ongoing employment. CDNI should have explained to Mr Adjei why his position had been identified as redundant and should have had the opportunity to put a case for his retention. I consider that genuine and not perfunctory consultation, even in the context of CDNI's financial position, would have required a minimum of three days. As Mr Adjei was employed on a part-time basis for three days a week, that is one working week. I have determined that that is Mr Adjei's anticipated period of employment.

• [43] Step 2 in Sprigg reflects the statutory requirement that the Commission take into account any amounts earned by Mr Adjei from employment or other work since the dismissal.[26] He stated that he found another job approximately one month after the dismissal. In light of my determination as to Mr Adjei's anticipated period of employment, there are no earnings since the dismissal that would require an adjustment to the amount of compensation to be ordered.

• [44] I have considered whether any discount should be made for contingencies,[27] consistent with step 3 in Sprigg. Again, given the anticipated period of employment, there is no need to make a deduction for contingencies.

[45] With respect to step 4 in Sprigg, I have considered the impact of taxation. I will determine compensation as a gross amount, and it will be for CDNI to deduct any amount of taxation required by law.

[46] As to the remaining statutory considerations:

• (1) Having regard to the quantum of the order I propose to make, I do not consider that any adjustment is warranted having regard to the viability of CDNI's business.[28]

• (2) Mr Adjei was employed by CDNI for approximately two and a half years.[29] Such a period of employment calls for no adjustment to any compensation order.

• (3) Mr Adjei took reasonable steps to minimise the impact of the dismissal.[30] No adjustment to any order is called for on that basis.

• (4) There being no findings of misconduct by Mr Adjei, I am not required to reduce the amount of compensation I might order.[31]

• (5) The compensation will not include a component for shock, humiliation or distress.[32]

• (6) The compensation order will not exceed the compensation cap.[33]

[47] I have determined that it is appropriate in all the circumstances of this case that Mr Adjei receive compensation of $554.85, being one weeks' pay, plus superannuation.

[48] I will make an order that CDNI pay Mr Adjei $554.85, less taxation as required by law, plus 12% superannuation. The order will require payment to be made by 1 May 2026.

[49] My order is issued separately to this decision in PR798445.

[1] In this decision, all references to legislation are to provisions of the Fair Work Act

[2] Section 396

[3] As prescribed by section 394(2)

[4] Within the meaning of section 382

[5] As defined in section 23

[6] Within the meaning of section 389

[7] Section 389(1)

[8] UES (Int'l) Pty Ltd v Leevan Harvey (2012) 215 IR 263; [2012] FWAFB 5241 at [27]

[9] Explanatory Memorandum to the Fair Work Bill 2008, par 1548

[12] Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [48]- [49]

[13] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

[14] Jaime Duckworth v My Shared Services Pty Ltd [2020] FWC 4865 at [23], citing UES (Int'l) Pty Ltd v Leevan Harvey (2012) 215 IR 263; [2012] FWAFB 5241 at [42]

[15] See Jaime Duckworth v My Shared Services Pty Ltd [2020] FWC 4865 at [24]

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

[19] Section 390(3)(b); Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [17]

[21] [1998] AIRC 989; (1998) 88 IR 21, adopted for the purposes of the Fair Work Act in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431

[22] Section 392(2)(c)

[23] See Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [34]

[24] He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 at [58]

[25] He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 at [58]- [59]

[26] Section 392(2)(e) and (f)

[27] Section 392(2)(g)

[28] Section 392(2)(a)

[29] Section 392(2)(b)

[30] Section 392(2)(d)

[31] Section 392(3)

[32] Section 392(4)

[33] Sections 392(5) and (6)

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