s.394 - Unfair dismissal

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy - objection upheld - application dismissed.

• [1] On 20 September 2023, Mr Francis Parriman (the Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Waardi Limited (the Respondent). The Respondent's first jurisdictional objection, being that the Applicant did not meet the minimum employment period, was dismissed in my decision in Mr Francis Parriman v Waardi Ltd [2024] FWC 285. The Respondent maintains two further jurisdictional objections, being that the dismissal was a case of genuine redundancy, and that it is a small business as defined in the Act and complied with the Small Business Fair Dismissal Code.

• [2] The Applicant was employed by the Respondent as its General Manager in April 2021 and continued in this position on a series of fixed term contracts, the last of which was terminated part-way through its term on 30 August 2023. The parties are in dispute over the nature of the termination, specifically, as to whether it should be regarded as a genuine redundancy. The need for restructure arose due to a fundamental change in the nature of the Respondent's activities. Specifically, the Respondent had previously been the administrative body responsible for supporting the Guumbarr Trust which was established as part of the Browse LNG Precinct Project Agreement. The role of administering the Trust was removed from the Respondent by a decision of the Western Australian government in June 2023.

• [3] As a result of the decision, the Respondent's Board needed to re-assess the role of the organisation and decide if indeed it should continue to operate. The Board decided that the Respondent organisation should continue to exist, albeit in a different capacity, specifically, to be a provider of education programs. Given the change in focus and the reduction in funds available, the Board resolved that the position of General Manager should be abolished. The senior person in the Respondent's operation is now the newly created role of Executive Officer, who has a range of responsibilities including, perhaps most relevantly, to develop and implement new learning programs, update existing programs and to promote such programs.

• [4] The Applicant sought to be represented before the FWC by a paid agent. The Respondent did not object to the Applicant being represented. The Applicant made submissions addressing s.596(2) of the FW Act outlining the Applicant's lack of experience with formal court or tribunal proceedings and the FW Act and submitted that the matter could be dealt with more efficiently if representation were allowed. I accepted that this was the case, and I exercised my discretion to allow the Applicant to be represented. The Respondent did not seek to be represented.

• [5] The Applicant gave evidence on his own behalf.

• [6] The following witnesses gave evidence on behalf of the Respondent:

• Mr Tony Noonan, Independent Director of the Respondent
• Mr Lindsay Greatorex, Chairman of the Respondent
• Ms Joanine Howard, Community Director of the Respondent

• [7] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

• [8] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant's employment with the Respondent has been terminated on the Respondent's initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

• [9] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

• [10] There was no dispute and I find that the Applicant was an employee of the Respondent and his employment was terminated at the initiative of the Respondent.

• [11] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

• [12] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

• [13] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

• [14] It is not disputed and I find that the Applicant was dismissed from his employment on 30 August 2023 and made the application on 20 September 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

• [15] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(i) a modern award covers the person;

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

(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.

• [16] It was not in dispute and I find that the Respondent is a small business employer, having fewer than 15 employees at the relevant time. The minimum employment period is therefore one year.

• [17] As I found in Mr Francis Parriman v Waardi Ltd [2024] FWC 285, the Applicant had a period of continuous service with the Respondent which commenced on 6 April 2021 and ended on 30 August 2023, being a period in excess of one year.

• [18] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

• [19] It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant's annual rate of earnings, noting that there were no amounts to be worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold of $167,500.

• [20] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

• [21] Section 388 of the FW Act provides that a person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

• [22] As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).

• [23] However, the parties were not in dispute over the nature of the termination and agreed that it was not a termination for cause based on conduct or capacity. It was instead a termination based on a restructure. Notwithstanding this, the Respondent submitted that the FWC was obliged to consider the termination through the lens of the Small Business Fair Dismissal Code (the Code) and if it was found that the Respondent had complied with the Code then the FWC lacked jurisdiction to deal with the matter.

• [24] As I advised the Respondent at hearing, I find that the termination is not covered by the Code and in doing so am guided by the finding of Vice President Watson in Ianello v Motor Solutions Australia Pty Ltd as follows:

"Motor Solutions asserts that the Small Business Fair Dismissal Code (the Code) provides that when employees are dismissed because of a business downturn, or their position is no longer needed, they are unable to bring a claim for unfair dismissal. It relies on a publication produced by the Australian Government dated 1 July 2009 headed "Small Business Fair Dismissal Code" and containing a Small Business Fair Dismissal checklist.

However the passage relied on appears to me to be of an introductory nature which summarises the effect of ss 385(d) and 389 of the FW Act. The Code itself does not appear to me to deal with terminations on the ground of redundancy. Although little may turn on this distinction I am unable to conclude that the termination was covered by the Code and was consistent with it."[1]

This principle was also adopted by Deputy President Asbury (as she then was) in Ms Paula Groszek v Toyvision International Pty Ltd [2015] FWC 697 at [37-39].

• [25] As such, I find that I am not required to examine compliance with the Code with respect to this matter and will consider whether the termination was a case of genuine redundancy.

Was the dismissal a case of genuine redundancy?

• [26] Under s.389(1) of the FW Act, 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."

• [27] However, s.389(2) of the FW Act inserts the caveat that a person's dismissal was not a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to be redeployed within:

(a) "the employer's enterprise; or

(b) the enterprise of an associated entity of the employer."

• [28] The parties are in dispute over whether the dismissal was a genuine redundancy. As such, I need to determine if the dismissal meets the criteria set out in s.389(1) and (2) of the FW Act.

• [29] The Applicant submitted that the Respondent had failed to properly consider the question of re-deployment of the Applicant within its enterprise and thus had not met the test set out in s.389(2) of the FW Act. The Applicant drew my attention to the findings of the Full Bench of Fair Work Australia in Ulan Coal Mines Limited v Honeysett et al (Honeysett) where the Full Bench set out in some detail its observations about the relevance of s.389(2) as follows:

"[25] Because these appeals concern the interpretation of an important section of the Fair Work Act which has not been considered by a Full Bench before we consider that it is in the public interest to grant permission to appeal. We turn first to the interpretation of s.389(2) and to the meaning of the term "redeployed". There are a number of observations to be made at the outset.

[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer's capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They 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.

[29] It is appropriate to mention some submissions advanced by counsel for Ulan concerning the interpretation of the s.389(2). It was submitted that an employer will not usually have the power or right to transfer an employee to employment by another employer, except in the unusual case where it is provided for in the terms of employment. Accordingly, the use of the term "redeployment" is directed at a broader concept, one which would include employment with the employer or an associated entity at some time after termination for redundancy. It was said that it is appropriate to regard an employee as having been redeployed if the employee is subsequently employed in a different or alternative position by their former employer or by an entity associated with their former employer. While this submission has a number of other implications, it is sufficient to say that it is not consistent with the clear words of the section and would lead to a great deal of uncertainty in its application. As we have already indicated, if an employee is terminated for redundancy but subsequently employed within an entity related to the employer, that might be an indication that the employee could have been reemployed at the time of the termination. But this will not always be the case. Subsequent employment within an associated entity may occur because circumstances have materially altered since the termination. For example, vacancies may have arisen."[2]

• [30] In addition to these observations, the Full Bench also noted as follows:

"[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer's enterprise as an alternative to termination of employment. Of course, the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations."[3]

• [31] The Applicant also drew my attention to the findings of Deputy President Booth in Troy de Haan v Lipa Pharmaceuticals (de Haan) where, relying on the findings in Honeysett, the Deputy President found as follows:

"[42] There is no submission concerning the existence of any associated entity or entities of the respondent therefore I will confine my consideration of this limb of s.389 to a consideration of whether it would have been reasonable in all the circumstances for the applicant to be redeployed within the respondent.

[43] Mr Khayum's submisions in relation to this point were confined to an assertion that there were no other jobs within the respondent for the applicant to be redeployed to. However, there was no indication that this possibility was discussed with the applicant. To discharge its onus under s.389(2) the respondent must satisfy the Commission that it was not reasonable to redeploy the applicant and simply asserting that there were no other jobs available is insufficient in my view.

[44] I find that the respondent has not discharged their onus in relation to s.389(2)(a) of the Act."[4]

• [32] The Applicant also cited the findings of the Full Bench in TAFE NSW v Pykett (Pykett) as follows (citations removed):

"[34] Honeysett is authority for the proposition that for the purpose of s.389(2)(b) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s.389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer's enterprise (or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed.

[35] As we have mentioned, the use of the past tense in the expression 'would have been reasonable in all the circumstances for the person to be redeployed ...' in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]'he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances'. The question is whether redeployment within the employer's enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

"They 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".

[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent's submissions. 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. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the 'genuine redundancy' exclusion, then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether 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 employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee."[5]

• [33] Finally, the Applicant noted the findings of Commissioner Ryan in Iryna Margolina v Jenny Craig Weight Loss Centre Pty Ltd (Margolina), the relevant part of which was upheld on appeal. The decision was, amongst other things, support for the proposition that an employer ought not assume an employee will reject the offer of a lower paid job but should instead consult with the employee if such a position is available. In his decision, the Commissioner commented on three decisions advanced by the Respondent to make its case that the termination was a genuine redundancy as redeployment was not possible. The Commissioner stated as follows:

"[35] None of the three decisions relied upon by the Respondent helps it. In fact as each is compared to the present matter it strengthens the conclusion I draw from the evidence in this matter that in all of the circumstances it would have been reasonable for the Applicant to be redeployed within the Respondent's enterprise.

[36] What each of the three cases and the present matter show is that employers should not arrogate to themselves the role of concluding how the redundant employee will respond to an offer of redeployment to a lower paid position. In each of the three cases relied on the conclusion that the redeployment offer was not reasonable in all the circumstances was not arrived at simply because the employer presumed that to be the case but was only arrived at by the Tribunal considering all of the evidence and material before it and then making a decision.

[37] The critical issue raised by s.389(2) is that the Tribunal must consider "all the circumstances" relating to the possible redeployment of the redundant employee.

[38] The test in s.389(2) is not based upon the presumptions or assumptions upon which the employer has acted. The test is an objective test having regard to far more than simply what the employer has arrogated to themselves.

[39] Where an employer has an obligation under s.389(1)(b) to consult with the employee about the redundancy issues as to the appropriateness of any redeployment to a lower paid position will (or should) inevitably be discussed. However where an employer is under no award or enterprise agreement obligation to consult with the employee about the redundancy then no consultation with the employee may occur. In the absence of consultation with the employee the employer runs the risk that any presumptive conclusion that an employee will be insulted by or demeaned by an offer of redeployment to a lower paid position may be found by the Tribunal to be wrong, and this in turn may lead to a finding that it was reasonable in all the circumstances for the employee to be redeployed to a lower paid position.

[40] Prudence would suggest to any employer that an employer should not presume to know how a redundant employee will react to an offer of redeployment to a lower paid position. Prudence would also suggest to an employer that even if the employer has no modern award or enterprise agreement obligation to consult an employee about a redundancy that the employer should consult with the employee. It appears that Prudence was not employed by the Respondent!"[6]

• [34] In summary, the Applicant submitted that the Respondent had not discharged its onus to establish that it was not reasonable to redeploy the Applicant. The relevant case law establishes that the FWC must consider all of the circumstances and the Applicant submits that the Respondent simply stating that there were no other roles available does not discharge its onus.

• [35] In his evidence, the Applicant states that he was never consulted about the proposed redundancy of his position. The Applicant states that in July 2023 he was called to a meeting with the Respondent's Chairperson Mr Lindsay Greatorex and a director, Ms Janine Howard. At that meeting, the Applicant states that he was directed to draft a job description for his replacement, albeit that there was limited input as to what the Board expected from the new position. It is the Applicant's evidence that he thought the process was designed to get rid of him from his position.

• [36] The new position was designated as "Executive Officer" and the Applicant's evidence is that he would have liked to have been considered for that role and that his experience and credentials made him a suitable candidate. He further states that if the role had been offered, he would have taken it. Nevertheless, the Board did not discuss with him the prospect of redeployment into the new role but rather simply terminated his employment.

• [37] Under cross-examination, the Applicant rejected the notion that he had been properly consulted regarding the proposed redundancy of his position. It was not contested that at the time of the meeting held on 19 July 2023 the Applicant was on reduced hours due to a workers' compensation claim arising from stress related to his employment. In response to a question from the Respondent as to why he had not responded to its offer, conveyed by email from Ms Howard, to comment on the restructure of the Respondent the Applicant noted his state of mind at the time and offered this as a possible reason for not responding.

• [38] The Applicant also rejected the notion put by the Respondent that he could not have performed the role of Executive Officer, being the role created to oversee the future activities of the Respondent, which would resolve around two educational programs. The Applicant was of the view that he was more familiar with the two programs than anyone else in the Respondent's organisation, albeit that he did concede the programs did not expand under his leadership. In response to my question, the Applicant conceded that he had not designed or developed the two programs although he had provided some input, but further conceded that he had no experience in developing early childhood programs. While the Applicant also conceded that he did not have any qualifications in education, he nevertheless maintained that he was appropriately qualified for the Executive Officer role. With respect to the issue of why he had not applied for the Executive Officer role despite being invited to do so, the Applicant stated that he believed that he would be unsuccessful based on comments from Ms Howard.

• [39] The Respondent submitted that the Applicant's position was no longer required and provided a comprehensive outline of the factors that went into the making of that decision. However, as the Applicant has not sought to challenge the need for the redundancy but rather the issue of redeployment, I will not comment on that issue other than to say I accept, based on the evidence submitted by the Respondent, that there was a need to restructure the organisation. I also accept that the restructure made some significant changes to the nature of the organisation and to its focus, which became specifically about the delivery of early childhood programs.

• [40] This changed the need for the role previously held by the Applicant. The Respondent submitted that it no longer needed a General Manager to oversee the controlling of a number of Trusts and a Trust Board and supporting a Registered Native Title body corporate. Given the change to focus on delivering early childhood programs, the Respondent submitted that it needed an educational leader who could manage the ongoing design and development of programs and to market those programs, which was a very different role to that performed by the Applicant. In support of this, the Respondent submitted that its job advertisements for the Applicant's role and the new role set out significantly different requirements and tasks. The Respondent goes further and says that Applicant has not made out a case that he could have performed the new role, albeit that he was invited to apply for that new role on 19 July 2023.

• [41] The Respondent submitted that it had consulted with the Applicant regarding his role and further submitted that the Applicant ought to have been aware that the organisation would not require his services following the restructure, as he had been involved in the Board discussions and decisions leading up to the restructure. It submitted that the budget prepared by the Applicant in early June 2023 made it clear that no funds were budgeted for his role as General Manager and that the fate of the role was well understood by everyone on the Board and the Applicant. As such, the Respondent submits that the Applicant was well aware of what was happening with his role some time prior to July 2023.

• [42] The Respondent's submissions also address the contention that the Applicant was not given an opportunity to respond to the proposed termination of his employment. It submits that the Applicant had between 19 July 2023 and 17 August 2023 to present a case for his ongoing employment, noting that again during this time he was involved in preparing budgets that contained no provision for his salary. The Respondent submits that as such it was clear that the Applicant's role was going to be abolished and as such, the only question left open was whether there was another role into which the Applicant could be redeployed. The Respondent submits that the Applicant was asked to address this by advising the Board of any useful role that he thought he could realistically perform but it appears that the Applicant did not do so. In summary, the Respondent submits that the Applicant was not suited to the role of executive officer due to a lack of technical expertise, marketing experience and his ability to be a "hands on contributor at the most senior level."

• [43] In his evidence, Mr Tony Noonan describes the restructured Waardi organisation as very different from the pre-restructure organisation. He states that the restructured organisation:

(a) "Has no community focus - other than the use of community organisations to facilitate delivery of the Building Babies Brains program.

(b) (Is) not focused on Jabbir Jabbir people particularly - its audience is all Aboriginal people in the Kimberley and potentially other parts of WA.

(c) (Is) not related to the Browse Agreement and structures that are ongoing from the Agreement in any way.

(d) (Is focused on being) expert in delivering early interventions in pre/post-natal cognitive development and early years literacy acquisition.

• (e) (Seeks) to bring about long-term intergenerational change within the Aboriginal community."[7]

• [44] Mr Noonan goes on to state that the Board needed to consider the human resources needed for the restructured organisation and was mindful of the technical leadership required for the Executive Officer role and took the view that the person leading the restructured organisation needed to have specific expertise in early childhood education. Mr Noonan's evidence is that the Board did not regard it as appropriate to employ the Applicant as the Executive Officer but then be forced to employ another person, who had the technical expertise required, to undertake the majority of the role. Mr Noonan states that Mr Parriman was invited to apply for the position of Executive Officer if he felt that he could meet the technical requirements of the role, but he chose not to do so.

• [45] In terms of other positions within the organisation, the evidence of Mr Noonan is that all five other roles provided for in the budget required high level early childhood education experience and knowledge. Mr Noonan's further evidence is that the Respondent undertook the process of consultation as set out in the Code. Mr Noonan states that the Board's decision was taken in the best interests of the Respondent and the Applicant's lack of technical expertise in early childhood education and marketing experience meant that it was not appropriate to redeploy him in the Executive Officer role.

• [46] Under cross examination, Mr Noonan conceded that by the time of the meeting on 19 July 2023 a decision had been made to make the position of General Manager redundant, albeit that this did not necessarily mean that the Applicant himself would be made redundant. However, in response to my question he stated that while the Respondent's Board had considered the Applicant for the role of Executive Officer but had collectively decided that the Applicant did not have the relevant skills and experience the Board were seeking. Mr Noonan's evidence was that the Board identified that the Applicant did not have the educational qualifications required, nor the ability to liaise with stakeholders about the latest research and update the programs accordingly. Mr Noonan conceded that there had not been any discussions directly with the Applicant to allow him to address these concerns but that given the Board had a very comprehensive understanding of the Applicant's skills and qualifications, they had felt comfortable in their assessment.

• [47] The Applicant questioned the particular qualification required and Mr Noonan offered the view that a bachelor's degree in education was the most relevant qualification. The Applicant disputed this and proposed that there were in fact specific qualifications in early childhood education. I then asked Mr Noonan about the requirements of the role and he advised me that the assessment of the Board was that the Respondent's two programs had not kept pace with the latest thinking and research in the relevant areas and so the need to address this was a key element of the Board's decision. Mr Noonan also confirmed that the successful Applicant for the Executive Officer role had a degree in education and had the technical skills and experience selling programs that the Board was seeking.

• [48] In his witness evidence, Mr Lindsay Greatorex states that when it became clear that a restructure would be necessary and that the restructured organisation would be primarily involved in delivering programs for early childhood, the Board did not think that the Applicant had the technical expertise required. Mr Greatorex states that he was present at the meeting with the Applicant on 19 July 2023 when the Applicant was advised that his position would become redundant, and that the Respondent had offered the Applicant the opportunity to apply for the Executive Officer role. In further evidence, Mr Greatorex states that the Applicant was very much aware of the potential that his position would be made redundant some time prior to the meeting on 19 July 2023 due to his involvement with the Board and meetings of the Board.

• [49] In further evidence provided at hearing, Mr Greatorex confirmed the changes made to the Respondent's operations and the desire of the Board to improve and expand its educational programs. Mr Greatorex stated his view that the Applicant was, in terms of the requirements the Board had set for the Executive Officer role, not competitive with the person who had been employed for the role. Mr Greatorex further stated that he did not think the Applicant could have addressed the perceived shortfall in qualifications and skills in a period of a few months, and that appointing the Applicant to the role would have been a breach of his duties as a director. Under cross-examination, Mr Greatorex conceded that he had not discussed redeployment with the Applicant but stated that he thought the Applicant had been given an opportunity to respond to the Board's proposed course of action.

• [50] In her witness evidence, Ms Joanine Howard stated that on 19 July 2023 she met with the Applicant and Mr Lindsay Greatorex. At that meeting, Ms Howard says that meeting included discussion about, amongst other things, changes that the Board intended to make, including changes to:

(a) the Board, the constitution and the organisational structure; and

(b) the General Manager role, which would be made redundant; and

(c) the employee mix which would include employing a person in a lower level and lower paid role with higher technical skills to lead the team; and

(d) the focus of the organisation, which would shift to delivery of early childhood programs.

• [51] It was Ms Howard's evidence that the Applicant had been clearly told that his position would be made redundant but that he could apply for the Executive Officer role if he thought he was a suitable candidate. Ms Howard annexed to her statement a copy of the text of an email she states was sent to the Board and the Applicant summarising the matters discussed at the meeting.

• [52] In further evidence given at hearing, Ms Howard confirmed her view was that the Applicant was, in terms of the requirements the Board had set for the Executive Officer role, not competitive with the person who had been employed for the role. Ms Howard further stated that she did not think the Applicant could have addressed the perceived shortfall in qualifications and skills in a period of a few months, and that appointing the Applicant to the role would have been a breach of her duties as a director.

• [53] In reply submissions, the Applicant noted that while both Mr Greatorex and Ms Howard had given evidence that the Applicant was free to apply for the Executive Officer role, this did not mean that the Respondent had considered redeployment. In the case of Mr Greatorex, the Applicant submits that the offer to apply also stood in contrast to Mr Greatorex's evidence that the Applicant was not suitably qualified for the role. The Applicant continued to deny that he had been advised that his position was being made redundant at the meeting on 19 July 2023.

• [54] The Applicant's reply submissions proposed that the Respondent had failed to establish that redeployment was considered at all, particularly given that there was no suggestion that there had been any discussions with the Applicant with respect to redeployment. Further, the Applicant submitted that the Respondent had not shown that it would not have been reasonable to redeploy him.

• [55] In his reply evidence, the Applicant challenged the submission of the Respondent that he would not have been able to perform the Executive Officer role and reiterated that if it had been offered to him, he would have accepted it. The Applicant further stated that his knowledge of, and commitment and passion for the early childhood learning programs exceeded that of the other staff and indeed that of the current Executive Officer. The Applicant's further evidence in reply is that he was not asked to consider other roles and suggest to the Board any role that he thought he could undertake if redeployed, albeit that he did concede that he was made aware the General Manager role would be redundant at the 19 July 2023 meeting. However, the Applicant states that he thought the General Manager role would be combined with the Program Coordinator role and he would transition into this role.

• [56] In further evidence, the Applicant refutes the Respondent's assertion that the Executive Officer role requires someone with an educational background and again asserts that he could have taken on the role. He states that the person who was hired for the role is known to him and that he has worked with her previously. It was his assessment that she was likely to have been the only applicant as she would not have been the best applicant in a field of similarly qualified applicants.

• [57] With respect to the evidence of Ms Howard, the Applicant states that the word redundancy was not used in the meeting on 19 July 2023 but rather that there would possibly be a replacement for him. Further, he refutes the claim that he was told he could apply for the Executive Officer role.

• [58] With respect to the evidence of Mr Greatorex, the Applicant refutes Mr Greatorex's assertion that he was not ideal person to manage the team and provide the technical leadership and states that his CV demonstrates that he is capable of performing the Executive Officer role.

• [59] The section of the FW Act which deals with genuine redundancy is section 389, which provides as follows:

(1) [Meaning of genuine redundancy] 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) [Exception where redeployment reasonable] 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:

(a) the employer's enterprise; or

(b) the enterprise of an associated entity of the employer.

• [60] In this matter, the Applicant has focused his objection to his termination being found to be a genuine redundancy on section 389(2)(a). However, it is appropriate that I consider the requirements of section 389(1) in the first instance. Based on the evidence provided by the witnesses for the Respondent, I find that there has been a significant change to the operational requirements of the Respondent's enterprise resulting from the decision of the Western Australian government to remove the Respondent from its role in administering the Guumbarr Trust. I find that as a result of this change, the Board no longer requires the General Manager job to be performed. I also find that there was no modern award or enterprise agreement applying to the Applicant's employment and so the provisions of section 389(1)(b) are not applicable. The Applicant has not submitted that section 389(2)(b) is relevant in this matter and I therefore turn my attention to section 389(2)(a).

• [61] With respect to section 389(2)(a), it is appropriate to summarise the case law to which the Applicant has referred me and to provide a summary of what those cases suggest should be the considerations for the FWC with respect to the issue of redeployment. I find as follows:

First, 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 be an appropriate evidentiary basis for such a finding. (see Pykett at [36])

Second, the question of whether redeployment would have been reasonable is answered with reference to "at the time of dismissal". (see Honeysett at [28])

Third, in assessing whether redeployment would have been reasonable, a number of matters are capable of being relevant. They 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. (see Honeysett at [28]) In terms of the skills and competence required for the proposed role into which the employee may be placed, the employee should have these skills at the time or be able to acquire them with a reasonable period of retraining. (see Honeysett at [34])

Fourth, where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. (see Honeysett at [34])

Fifth, an employer cannot discharge its onus under s.389(2) by simply asserting to the FWC that there were no other jobs. (see de Haan at [43])

Sixth, the process of considering redeployment requires that the Applicant be consulted about potential jobs or indeed the lack of potential jobs into which he or she might be redeployed. (see de Haan at [43])

Seventh, given that the facts regarding the availability of a position or positions into which an employee could potentially be redeployed are most readily available to the employer, then an employer should ordinarily adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether 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 employer.

The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee. (see Pykett at [36] and [37])

Eighth, if the only positions available for redeployment are lower paid than the employee's redundant position, an employer should not presume to know how an employee will respond to an offer of redeployment into such a lower paid position and ought to discuss such an option with the employee. (see Margolina at [40])

• [62] In this instance, I find that the only potential position into which the Applicant could possibly have been redeployed at the time of his dismissal was the role of Executive Officer. While the Applicant did speculate about the role of Program Coordinator, the evidence of the Respondent, which I accept, is that this role, which has been unfilled for some time, is not going to be filled as it is not needed in the new structure. Other than this, the Respondent employs a very small number of people and there were no other roles proposed by the Applicant as being appropriate and based on the evidence provided, I am not aware of any such role. I must then turn my mind to the question of whether it would have been reasonable in all of the circumstances, for the Applicant to have been redeployed into the Executive Officer role.

• [63] In the first instance I find that there was insufficient consultation with the Applicant regarding the potential for him to move into the Executive officer role. While he was invited to apply, I reference the fourth point in paragraph 61 above and note that this does not absolve the Respondent. It would have been far more appropriate to engage the Applicant in a discussion about what the proposed new role entailed, and to have given him an opportunity to make his case for being considered for that role.

• [64] There is also the issue of consultation more broadly. The Respondent proposed that the Applicant did or should have known what was going on and that consultation is not a negotiation. While I make no finding on the first of these notions, I disagree emphatically with the last of them. Consultation is not a process of merely advising a party of what you intend to do. It is a two-way process that requires that the consulted party has an opportunity to have input with a view to changing the mind of the other party - even if only in part. As such, I am not satisfied that the Respondent properly consulted with the Applicant, albeit that the need to do so arises via case findings rather than a statutory imperative.

• [65] However, I then turn to the skills and qualifications required to perform the job of Executive Officer, as the Board envisages that job will operate. It was the Applicant's contention that he could have done the job and that qualifications in early childhood education were not required. I note that there are specific qualifications in early childhood education available, usually as a distinct area of specialty via a Bachelor of Education degree. I note also that the successful applicant for the Executive officer role, while holding a Bachelor of Education degree does not appear to have specialized in early childhood education. Nevertheless, I am mindful of the evidence given on behalf of the Respondent regarding the size of the potential pool of applicants given the Respondent's location in the north of Western Australia. Given this, I accept that the successful candidate may not have been the perfect candidate but was regarded by the Board as a better candidate than the Applicant with respect to criteria such as educational qualifications.

• [66] I also accept that while the Applicant took the view that qualifications were not needed and that he could do the job, the Board collectively took a different view. I find in this matter that the assessment of the Board is a compelling factor in my decision. I find that the Board has, quite properly, considered the issue of the very survival of the Respondent organisation, and has decided to seek to be a provider of education programs. In doing so, it has understandably sought to employ someone who can design, implement and market those programs. Based on their knowledge of the Applicant's skill set, they have arrived at what appears to be for them the inescapable conclusion that he does not have the attributes they are seeking, notwithstanding that he has clearly demonstrated considerable abilities in other areas during his time with the Respondent. Although the Applicant disagrees with the Board's assessment, I find that I should prefer the collective view of the Board, expressed in the evidence given to the FWC by three of its members, with regard to the human resources needs of the Respondent in its changed circumstances.

• [67] As such, notwithstanding the concerns I have regarding the consultation with the Applicant and the termination process overall, I cannot be satisfied that in all of the circumstances, it would have been reasonable for the Applicant to be redeployed into the Executive Officer role, being the only role available, as he did not have the range of attributes that the Board concluded were necessary to do the job, nor could he have acquired those attributes, such as a qualification in education, within a reasonable time period.

• [68] I find that the Respondent has made out the case that the termination of the Applicant's employment was a genuine redundancy. As a consequence of this finding, the FWC does not have jurisdiction to consider the issue of the unfairness or otherwise of the termination and the application is dismissed.

P Mullally of Workclaims Australia for the Applicant.

[1] Ianello v Motor Solutions Australia Pty Ltd [2010] FWA 3125 at [12-13].

[2] Ulan Coal Mines Limited v Honeysett et al (Honeysett) [2010] FWAFB 7578.

[4] Troy de Haan v Lipa Pharmaceuticals [2013] FWC 9928.

[5] TAFE NSW v Pykett [2014] FWCFB 714.

[6] Iryna Margolina v Jenny Craig Weight Loss Centre Pty Ltd [2011] FWA 5215.

[7] Statement of Tony Noonan at paragraph 11.

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