s.394 - Unfair dismissal

Application for an unfair dismissal remedy - genuine redundancy.

• [1] Mr Igor Demin (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 in respect of his employment with Tuggeranong Vikings Swim Club Inc (Respondent or the Club).

• [2] The Applicant commenced employment with the Respondent in April 2024 in the position of Head Coach of the Club. His employment was terminated by reason of redundancy, effective 14 June 2025. The Applicant contends that the termination of his employment did not constitute a case of genuine redundancy and that his dismissal was unfair.

• [3] Pursuant to section 396 of the Act, the Commission must first determine whether the dismissal was a case of genuine redundancy before considering the merits of the application.

• [4] The matter was heard on 7 November 2025. At the hearing, the Applicant was self-represented and the Respondent was represented with permission by Mr William Ward.

• [5] For the reasons set out below I find that the Applicant's dismissal was a case of genuine redundancy, and as a result he is not a person protected from unfair dismissal

• [6] The Respondent is a community swim club that has been operating since 1991. It is managed by a volunteer board of committee members.

• [7] The Applicant commenced employment with an annual salary of $110,000. His salary and conditions of employment were negotiated with a committee comprised of members that were replaced in August 2024 with a new committee.

• [8] The President and Treasurer, who commenced in their volunteer roles on the committee in August 2024, gave evidence in the proceedings.

• [9] They gave evidence that there was a very slow handover from the previous committee, and they had a tough time getting access to the necessary systems and information. This included access to the Respondent's financial records. The financial records were only brought up to date on 21 May 2025, and once those records had been reviewed by the committee, it was "abundantly clear that the financial position of the Respondent was not sustainable and urgent action needed to be taken".

• [10] On 21 May 2025 the committee reviewed the Club's financial position and based on the advice of the Club's bookkeeper and Treasurer, the Club determined that it was financially unviable for it to continue to operate unless it was able to reduce its expenses.

• [11] Both the President and the Treasurer stated they did not want to be responsible for insolvent trading.

• [12] In reviewing the Club's expenses, the Applicant's salary was identified as its highest expense, and one that was necessary to reduce.

• [13] On 25 May 2025 the President of the Club gave the Applicant a letter in the following terms:

After careful consideration, the Tuggeranong Vikings Swimming Club regrets to inform you that we are no longer in a financial position to continue your employment as Head Coach at the current salary. While your expertise and leadership have been of great value to the club, the financial resources required to support a coaching role of your caliber are unfortunately beyond our current capacity. This decision has been made solely to ensure the long-term sustainability of the club and is in no way a reflection of your performance or commitment.

Consequently, we are making the Head Coach position at the current salary redundant. While the position of Head Coach will still be required, it will have a much lower level of remuneration which is closer in line with the minimum entitlements under the Fitness Industry Award 2020 (see Attachment A).

You are of course welcome to be redeployed to this new position with the lower salary, but we understand if you do not wish to be. We would like to discuss this option with you if you are open to it.

If you choose not to be redeployed your employment will end by way of redundancy. In accordance with the terms of your employment contract, you are entitled to a notice period of three weeks. As you have been employed with the club for more than one year but less than three years, this notice period is consistent with your contractual entitlements.

You may choose to either continue working during the notice period or receive payment in lieu of the remainder of the notice (i.e. pay out the remainder of the 3 weeks). Please advise us of your preference at your earliest convenience.

The notice period commences on 25 May 2025, the day after the date of this letter. The final date of your employment is 14 June 2025, unless you choose to accept redeployment on or before 14 June 2025. If you choose to accept redeployment, then the new rate in Attachment A will start on 15 June 2025.

You will receive all outstanding entitlements owed to you, including payment for any accrued but unused annual leave, payment in lieu of notice (if elected).

These payments will be processed in your final pay, which will be issued in accordance with our usual payroll schedule.

If you have any questions regarding your final pay, entitlements, or this letter, please contact the Treasurer, James Busby [email address].

We would like to take this opportunity to sincerely thank you for your dedication and contributions to the club. Your leadership and commitment have been greatly valued, and should you decide not to continue with us at Tuggeranong Vikings Swimming Club your presence will be missed by parents, the committee, and swimmers alike.

We wish you all the best in your future endeavours, no matter what choice you make.

• [14] On 26 May 2025 the Applicant responded in writing, rejecting the offer of redeployment and indicating he would be seeking legal advice.

• [15] The Treasurer met with the Applicant on 29 or 30 May 2025, during which he attempted to give the Applicant a letter which was in the following terms:

As stated in the redundancy notice of 25 May 2025, the club is not in a financial position to pay a person of your calibre the salary you are currently receiving. Therefore, as a committee, we made the extremely difficult decision to make the Head Coach position at the current salary redundant.

As treasurer of the Tuggeranong Vikings Swim Club Inc, I thought it best if I give you some insights into the current financial situation the club is in.

• For the 12 months to 21 May 2025 the club made a loss of almost $50,000.
• The average loss per month for the quarter ending 31 March 2025 was $4,533.53
• At this current rate of loss, the cash asset that the club holds could be depleted by as early as late August with the club having to declare that it is insolvent and cease operating.
• The clubs's current wages expense (not including superannuation) exceeds the squad fees for the period 21 May 2024 to 21 May 2025.

I am happy to meet with you prior to 5pm tomorrow and show you evidence to support the above points.

I appreciate that this news of the club's finances probably comes as a shock. I do hope that this goes someway to explain the gravity of the situation and the need for urgent action.

• [16] The Applicant refused to take the letter, so the Treasurer sent him a copy by email the same day.

• [17] On 3 June 2025 the Applicant notified the Respondent that he had commenced proceedings in the Fair Work Commission.

• [18] On 4 June 2025 the Respondent issued a further letter to the Applicant reiterating the reasons for the decision and referring him to the letter of 25 May 2025.

• [19] Following some other communication between the parties, the Applicant was issued with a termination letter on 14 June 2025 in the following terms:

I am writing to you about the termination of your employment with Tuggeranong Vikings Swim Club Inc (the Club).

On 25 May 2025 you were notified that your employment would end on 14 June 2025 at end of shift unless you accepted redeployment to the new head coach position on or before 14 June 2025.

On 29 May 2025 you meet with the Treasurer, Mr James Busby, to discuss the financial position of the Club. At that meeting Mr Busby attempted to explain the financial position of the Club, provide you with a copy of the profit and loss statement, and explain your options to you.

In your letters of 25 and 29 May 2025, you clearly state that you do not accept the new Head Coach role with attached salary and package.

Your employment will end immediately. This is because you have not accepted redeployment to the new head coach position and your notice period has ended.

You will be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. This includes superannuation.

If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at www.fairwork.gov.au.

Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.

If you have any questions regarding your final pay, entitlements, please contact the Treasurer, James Busby [email address].

We sincerely thank you for your dedication and contributions to the club. We wish all the best to you and your family.

• [20] The evidence of the Treasurer was that since the Applicant's termination, the Club has not employed any new coaching staff and has utilised its casual and volunteer coaches to fill the position. He confirmed the Club does not have the means to employ a new Head Coach on a salary equivalent to the Applicant's salary.

• [21] The Applicant gave evidence that he considered the redundancy was not genuine, there was no consultation, and the offer of redeployment was not reasonable. He also gave evidence as to the significant growth experienced by the Club in terms of membership and performance outcomes since he commenced in the role.

• [22] The Applicant said his salary was a "deliberate and financially supported decision, based on the Club's revenue and stable financial position at that time". He said he had been advised by the previous committee that the Club needed arounds 110-120 members to be financially sustainable, and the Club had 140 members at the time of his redundancy.

• [23] He argued that the redeployment offer at half the salary (ie. $65,000) bore no resemblance to the duties or responsibilities of a Head Coach and so could not be regarded as genuine redeployment.

• [24] Because the Head Coach position still exists, argued the Applicant, it could not be a genuine redundancy, as the duties were being carried out by other staff and volunteers. He said this confirmed that the role itself was not eliminated, but merely reassigned.

• [25] The Applicant relied on witness statements from three other club members, Mr Li, Ms Papas and Mr Potanin, which primarily went to suggestions about how the Club could have made a different decision to redundancy.

• [26] The President of the club filed a witness statement in reply addressing the matters raised by those three club members, and I accept her evidence as to the matters contained therein.

• [27] Under s.385(d) of the Act a person is not unfairly dismissed if the dismissal was a genuine redundancy. The term 'genuine redundancy' is defined in s.389 of the Act:

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

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

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

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

• [28] Accordingly, there are three relevant matters for consideration in determining whether the Applicant's dismissal was a case of genuine redundancy, namely:

1. Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise?

1. Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

1. Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [29] The Explanatory Memorandum to the Fair Work Bill 2008 provides that a redundancy may be genuine where, for example, the employer only needs three people to do a particular task or duty instead of five, or where the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.[1]

• [30] Further, the process for selecting an individual employee for redundancy is not a relevant question as to whether the redundancy is a genuine redundancy.[2]

Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise?

• [31] As noted above, in considering the question of whether an employer "no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise", it is well established that the test can be met when job functions are retained but are redistributed.

• [32] An employee's job may be genuinely made redundant when the employee's duties, or aspects of them, are still being performed by other employees.[3] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[4]

• [33] The reference to "changes in the operational requirements of the employer's enterprise" in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.[5] The operational circumstances of a business which may result in a redundancy are matters within the direct knowledge of the employer. The evidentiary onus rests on the employer to provide direct evidence about the nature of the employee's job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer's enterprise.[6]

• [34] In Ulan Coal Mines Limited v Henry Jon Howarth and others[7], the Full Bench said:

"[17] It is noted that the reference in the statutory expression is to a person's 'job' no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 a job involves 'a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee' (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

'What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant ...' (at p.308)

This does not mean that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the 'job' of that employee no longer exists.'"

[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

'When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a 'genuine redundancy' where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.'"

• [35] In Adams v Blamey Community Group[8], the Full Bench, in relation to s.389(1)(a), said:

"it is necessary to state at the outset that consideration of whether the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer's decision to make the person's job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee's job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, "Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements." What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee's job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary." (citations omitted)

• [36] Having considered the evidence and submissions, I am satisfied and find that the Applicant's role with a salary of $110,000 no longer exists and has not been replaced.

• [37] There were clear changes in the operational requirements, that being the financial position of the Club. It was reasonable and appropriate for the Club to reduce its costs, particularly to avoid the risk of trading while insolvent.

Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

• [38] It is not in dispute that Fitness Industry Award 2020 (Award) applied to the Applicant's employment.

• [39] Clause 27 of the Award deals with consultation as follows:

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

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

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

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

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

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

27.2 For the purposes of the discussion under clause 27.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

27.3 Clause 27.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

27.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 27.1(b).

27.5 In clause 27 significant effects, on employees, includes any of the following:

(a) termination of employment; or

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

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

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

(e) alteration of hours of work; or

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

(g) job restructuring.

27.6 Where this award makes provision for alteration of any of the matters defined at clause 27.5, such alteration is taken not to have significant effect.

• [40] In this case, I am satisfied that the Respondent met its obligations to consult. It gave written notice to the Applicant on 25 May 2025 in addition to the other correspondence outlined above. Further, the Treasurer met with him to discuss the situation. Overall, I am satisfied that the Club took reasonable steps to consult with the Applicant, including to explain its financial position.

• [41] As a result, I am satisfied that the consultation obligations were met.

Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [42] As set out earlier, s.389(2) provides that a person's dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise.

• [43] For the purposes of section 389(2) of the Act, the Commission must consider 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 employee. There must be an appropriate evidentiary basis for such a finding.[9] The word 'redeployed' in section 389(2) of the Act should be given its ordinary and natural meaning, which is to 'transfer to another job, task or function'.[10]

• [44] The Applicant was offered redeployment involving a reduced salary which he declined. There was no evidence of other alternative positions to which the Applicant could have been redeployed.

• [45] For the above reasons, I am satisfied that the Applicant's employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act.

• [46] As a result, the Applicant is not an employee who is protected from unfair dismissal and her application under s.394 of the Act must be dismissed. An order dismissing the application will be issued with this decision.

[1] See Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1548.

[3] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404-5.

[4] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].

[5] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496 at p. 373.

[6] Kieselbach v Amity Group Pty Ltd PR973864 at [34].

[7] [2010] FWAFB 3488.

[8] [2016] FWCFB 7202.

[9] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36].

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