Fair Work Commission|2025-10-22

Irene Narayan v Expo Centric Pty Ltd [2025] FWC 3123 (22 October 2025)

The attached document replaces the document previously issued with the above code on 22 October 2025.

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissal was a case of genuine redundancy - redundancy not genuine because it would have been reasonable in all the circumstances for the employee to be redeployed - dismissal unfair - compensation awarded

[1] On 21 March 2025, Ms Irene Narayan made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Expo Centric Pty Ltd (Expo Centric)

[2] Ms Narayan was employed by Expo Centric as a Marketing Manager from 12 August 2024 until her dismissal on 28 February 2025, on the ground of redundancy.

[3] In summary, I have found that the redundancy was not genuine because it would have been reasonable in all the circumstances for Ms Narayan to be redeployed to the newly created position of Senior Marketing Coordinator on 28 February 2025 rather than being dismissed. I have determined that Ms Narayan's dismissal was harsh, unjust and unreasonable and that an order for compensation is appropriate.

[4] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[5] After taking into account the views of Ms Narayan and Expo Centric and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter according to s.399 of the FW Act.

[6] Ms Narayan represented herself at the hearing and gave evidence on her own behalf.

[7] The following witnesses gave evidence on behalf of Expo Centric:

Mr Stan Kruss, Managing Director and sole shareholder of Expo Centric; and

Mr Andrew Rufatt, Chief Financial Officer and Head of Systems and Automation at Expo Centric

[8] Mr Rufatt represented Expo Centric at the hearing with assistance from Mr Kruss. All witnesses were cross-examined.

[9] Ms Narayan filed submissions in the Commission on 23 June and 21 July 2025 and Expo Centric filed submissions in the Commission on 2 June and 7 July 2025. The matter was listed for hearing on 29 July 2025. I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.

[10] Expo Centric creates exhibition displays for clients.[1] Mr Stan Kruss is the Managing Director and sole shareholder of Expo Centric. Mr Kruss explained that Expo Centric is a privately-owned company established 16 years ago. Over that time, Mr Kruss has focused on building a stable, innovative and profitable business that supports long-term staff and evolves to meet changing market conditions. Mr Kruss said that every decision he makes is with the sustainability of the business in mind.[2]

[11] Mr Andrew Rufatt is the Chief Financial Officer and Head of Systems and Automation at Expo Centric. Mr Rufatt has been employed by Expo Centric since 2018. In early 2024, Mr Rufatt was appointed to the role of Head of Systems and Automation, responsible for the design and implementation of Expo Centric's digital transformation strategy. This included Customer Relationship Management (CRM) governance, automation architecture, process optimisation, and systems oversight across departments. As part of an internal review of executive workloads and responsibilities, the Head of Systems and Automation role was formally consolidated with the Chief Financial Officer position on 21 February 2025. Mr Rufatt has held the dual role since that date.[3]

[12] Mr Kruss explained that historically, Expo Centric was a sales-led business, with limited marketing input. This involved the employment of business development staff who would 'cold call' potential clients to generate business. There was usually no more than a part-time marketing manager and minimal design support. However, following the COVID-19 pandemic and the shift to remote work, traditional business development activities such as cold calling became less effective. Mr Kruss said that in recognition of this, he initiated a shift toward a marketing-led growth strategy. Mr Kruss said that between 2021 and 2024, Expo Centric invested significantly in building a full-service internal marketing team. Over that time, Expo Centric trialled five different marketing leaders with varying levels of experience, ranging from 8 to 30 years. Mr Kruss said that despite significant resources, with the headcount growing to 14 and an annual spend increasing to approximately $750,000, none of these leaders succeeded in delivering a sustainable pipeline of new clients.[4]

[13] Mr Kruss said that in 2024, Expo Centric engaged Ms Narayan as its Marketing Manager. Ms Narayan was chosen because she had a more hands-on, small business background, and relevant exposure to exhibitions and creative services. Mr Kruss said that he was transparent from the beginning that the role was experimental and results driven. Mr Kruss said that the mutual understanding between himself and Ms Narayan was that the role would need to demonstrate return on investment in order to be viable.[5]

[14] Ms Narayan commenced employment with Expo Centric as a Marketing Manager on a permanent full-time basis on 12 August 2024 pursuant to an Employment Contract dated 24 July 2024.[6] Ms Narayan received an annual salary of $130,000 plus superannuation. Clause 2.2 of the Employment Contract provided:

The terms and conditions of your employment will be in accordance with the Contract and, where applicable, the Industrial Instrument as named in Item 5 of the Schedule (the Industrial Instrument), as varied and amended from time to time.[7]

[15] Item 5 of the Employment Contract referred to the Amusement, Events and Recreation Award 2010 (the Amusement Award).[8]

[16] Ms Narayan has over 10 years of experience as a Marketing Manager.[9]

[17] Ms Narayan's responsibilities at Expo Centric included content marketing strategies, search engine optimisation (SEO), lead generation initiatives, HubSpot marketing, social media management, and coordination of cross-functional teams. As the Marketing Manager, Ms Narayan was responsible for each of the departments in the marketing team, including SEO, Graphic Design, Copyrighting, Sales and Research and HubSpot. There were approximately 13 staff in the marketing team.[10]

[18] Mr Rufatt explained that in 2024, Expo Centric launched a multi-phase organisational reform strategy aimed at driving scalability and operational efficiency through the introduction of AI-enabled automation, CRM consolidation, and digital process mapping. Mr Rufatt said that as Head of Systems and Automation, he was responsible for overseeing this initiative which was cross functional and impacted all major departments, including Marketing, Sales, Operations, and Support.[11]

[19] Mr Rufatt said that from the third quarter of 2024, Expo Centric progressively replaced a number of manual marketing tasks with automated systems.[12] Mr Rufatt said that by December 2024, the following changes occurred:

CRM analytics were extracted from the marketing team and moved into the Systems function.
Segmentation and campaign timing became automated based on behavioural logic.

• Campaign performance reports were system-generated and delivered directly to sales.[13]
[20] Mr Rufatt said that as a result of these changes, the Marketing Manager was no longer required to plan, deploy, or interpret campaign activity. This role was being gradually overtaken by system logic, pre-built automations, and embedded analytics. At the same time, other responsibilities began shifting. Tender development and pitch collateral were reassigned to Sales and, later, the Operations team. Social, SEO, and copywriting remained with specialist roles who operated independently and began to explore the adoption of AI content writing, and now work in consultation with the systems and automation team who guide the researching and writing of content by using Large Language Models.[14]

[21] Mr Rufatt said that the Marketing Manager role became functionally obsolete due to:

The implementation of AI and automation systems that replaced campaign logic, deployment, and analytics;
The redistribution of residual responsibilities to executional staff in Sales, Operations, and Creative;

• The abandonment of a centralised management model in favour of specialist-driven autonomy.[15]
[22] Mr Rufatt said that by early 2025, he continued to observe insufficient growth relative to AI enabled capabilities of sales-qualified leads despite significant marketing headcount, automation capability, and campaign activity. This was not a reflection of Ms Narayan's performance, but comparative to an integrated system with AI capabilities.[16]

[23] Ms Narayan disputed that AI was involved in key aspects of her work and pointed to examples of her work which she said established that the marketing-led approach was outperforming business development efforts.[17]

[24] Mr Kruss said that by January and February 2025, it became clear that Expo Centric was on track to miss its sales targets by 20-25%, putting the business at commercial risk and that a restructure was required. Mr Kruss said that he engaged in conversations with Ms Narayan about restructuring the team to reduce overheads and redirect resources toward Business Development Managers, who had become effective again as face-to face engagement returned post-COVID.[18]

[25] On 27 Feb 2025, Mr Rufatt formally advised Mr Kruss that the Marketing Manager position was no longer commercially viable, and that its responsibilities should be split across several sections. Mr Kruss said that following internal consultation with other relevant members of the leadership team, Expo Centric determined that the marketing structure, specifically the senior leadership layer, was not delivering the results necessary to justify the ongoing investment. Mr Kruss believed that the most appropriate and sustainable course of action was to begin the restructure at the top and make the Marketing Manager role redundant.[19]

[26] Mr Kruss said that the decision was not performance-related, and at no point was there formal performance management or disciplinary action. Mr Kruss said that Ms Narayan had passed probation only two weeks before her termination due to the genuine redundancy. Mr Kruss said that if the decision had been motivated by dislike or performance concerns, it could have been made earlier and lawfully. Mr Kruss said that the timing reflects that this was a measured business decision, not a reactionary or personal one.[20]

[27] Ms Narayan said that in the weeks leading up to her termination, Expo Centric engaged in cost-cutting measures, including cancelling subscriptions, reviewing suppliers, and requiring the marketing team to share licences for software.[21]

[28] Ms Narayan said that Expo Centric also increased the frequency of emails to her regarding the status of projects she had been managing or involved with.[22]

[29] Ms Narayan said that she received positive feedback for her involvement in projects she was responsible for. Expo Centric did not hold any meetings with Ms Narayan regarding her performance, nor place her on a performance management plan.[23]

[30] Ms Narayan said that on 28 February 2025, she was called into a meeting by Mr Kruss, and he said 'Due to technological innovations, the Marketing Manager role is being made redundant' and that Ms Narayan was being 'terminated effective immediately'. Immediately after the meeting, the Human Resources Manager, Ms Karla Habulan, sent an email to Ms Narayan to request her signature on the Notice of Redundancy.[24]

[31] The Notice of Redundancy stated, 'the company must restructure its marketing function' and 'with a consolidation of many parts of the role' as the reason for Ms Narayan's termination. After Ms Narayan's termination, she became aware that Expo Centric had been advertising for a 'Senior Marketing Coordinator' role. The first advertisement was posted the day before Ms Narayan's termination and was posted as a 'Private Advertiser'. Further advertisements posted following Ms Narayan's termination were public. Ms Narayan was aware of the following advertisements for the Senior Marketing Coordinator role:

A private job advertisement posted to Seek.com on 27 February 2025,
A public job advertisement posted to Seek.com on 9 March 2025 and

c. A public job advertisement posted to Indeed with an expected start date of 28 March 2025.[25]
[32] Ms Narayan said that the list of responsibilities connected with the advertised Senior Marketing Coordinator role mirror those tasks that she undertook in her role as Marketing Manager, including in relation to some specific projects.[26]

[33] Ms Narayan said that if, as claimed by Expo Centric, automation, AI, and the reallocation of HubSpot functions to the Systems and Automation team had replaced the need for a Marketing Manager, then there would be no need for the creation of a Senior Marketing Coordinator role with the same duties.[27]

[34] Ms Narayan said that prior to the termination, she was not given the opportunity to be considered for that role, nor any other role within Expo Centric. Ms Narayan said that Expo Centric did not consult with her at all in relation to restructuring or redundancy and that she was completely taken aback by the termination.[28]

[35] Mr Kruss said that although no equivalent managerial role existed, Expo Centric advertised a Senior Marketing Coordinator position on 9 March 2025. The first advertisement was for internal benchmarking and did not reflect an actual open position. Subsequent job ads were for a junior-level role with significantly reduced responsibilities, expectations, and pay. The Coordinator role does not include strategic oversight, team leadership, or budget accountability. It is designed to support Mr Kruss directly, not to replace a senior leadership function.[29]

[36] Mr Kruss said that Expo Centric invited Ms Narayan to express interest in the Senior Marketing Coordinator position on 28 February, 4 April, and 12 May 2025, however, she declined each invitation.[30]

[37] Ms Narayan said that she sought legal advice, and her solicitors sent a letter of demand to Expo Centric on 21 March 2025. Shortly after, on 4 April 2025, Ms Narayan's solicitors received an email from Mr Rufatt which offered Ms Narayan the role of Senior Marketing Coordinator. The email stated that the role was offered to Ms Narayan during the meeting in which she was terminated, on 28 February 2025. Ms Narayan said that this was not true as redeployment was not mentioned at all during that meeting. Ms Narayan said that if the role had been offered to her at that time, it is likely that she would have accepted the job even though the salary was 60% less than the salary she had been paid as Marketing Manager, as Ms Narayan has a mortgage and needed to earn a wage. Ms Narayan said that she would have stayed in that role until she found something more suited to her skill level. Ms Narayan instructed her solicitors to reject the offer.[31]

[38] Ms Narayan said that she did not consider Mr. Kruss' offers of the Marketing Coordinator role, made on 4 April 2025 and again on 12 May 2025 to have been genuine. Ms Narayan said that she believed these offers were made only after correspondence had been received from her legal representative and appeared to be intended to create the impression of procedural compliance with legal obligations, rather than representing sincere or meaningful opportunities for continued employment.[32]

[39] Mr Rufatt said that the Senior Marketing Coordinator role advertised was scoped as non-managerial; it carries no budget responsibility, no staff reports, and has a salary range of $75,000 - $90,000. Its duties are limited to uploading assets, scheduling automated sequences and monitoring dashboards. Mr Rufatt said that Expo Centric has not proceeded to appoint anyone to this role, as it is not urgent and so far, much of the systems and automation work has alleviated the need for these tasks.[33]

When can the Commission order a remedy for unfair dismissal?

[40] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and

[41] Both limbs must be satisfied. I am therefore required to consider whether Ms Narayan was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Narayan was so protected, whether Ms Narayan has been unfairly dismissed.

[42] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

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

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

[43] A threshold issue to determine is whether Ms Narayan has been dismissed from her employment.

[44] There was no dispute and I find that Ms Narayan's employment with Expo Centric was terminated at the initiative of Expo Centric. I am therefore satisfied that Ms Narayan has been dismissed within the meaning of s.385 of the FW Act.

[45] Under s.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 s.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.

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

[48] Both parties submitted that the termination took effect on 28 February 2025. On 21 March 2025, Ms Narayan filed an Unfair Dismissal application with the Commission. I am therefore satisfied that the application was made within the period required in s.394(2).

[49] 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

(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.

[50] It was not in dispute, and I find, that at the time of dismissal, Ms Narayan had completed at least the minimum period of employment with Expo Centric, and that she earned less than the high income threshold.

[51] I am therefore satisfied that, at the time of dismissal, Ms Narayan was a person protected from unfair dismissal.

[52] It was not in dispute, and I find that the Small Business Fair Dismissal Code does not apply to Ms Narayan's employment.

[53] Expo Centric submitted that the dismissal was a case of genuine redundancy so I must determine this matter before considering the merits of the application.

Was the dismissal a case of genuine redundancy?

[54] Under s.389(1) of the FW Act, a person's dismissal was a case of genuine redundancy if:

(a) the 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.

[55] Section 389(2) provides that 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 the employer's enterprise or the enterprise of an associated entity of the employer.

Did Expo Centric no longer require Ms Narayan's job to be performed by anyone because of changes in its operational requirements?

[56] According to the Full Bench in Adams v Blamey Community Group,[34] s.389(1)(a) requires findings of fact to be made as to whether, firstly, the employer has made the decision that the 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.[35]

[57] The distribution of tasks done by a particular employee between several other employees to improve efficiency is provided as a specific example by the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) of a change in the operational requirements of an enterprise. It is not the case that if any aspect of the employee's duties is still to be performed by somebody, that employee's role cannot be redundant. There are 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.[36]

[58] Most of the evidence in the hearing was in relation to whether Expo Centric no longer required Ms Narayan's job to be performed by anyone because of changes in the operational requirements of Expo Centric's enterprise. It appears that the decision by Expo Centric to employ a Marketing Manager was essentially an impulsive short-term experiment and that when it did not yield significant results immediately, Mr Kruss acted quickly to end Ms Narayan's employment. With the benefit of hindsight, it appears that the experiment was always doomed to fail given that previous attempts at growing the business through a marketing strategy during the period from 2021 to 2024 had been unsuccessful and that Ms Narayan's employment coincided with the launch of a multi-phase organisational reform strategy. Mr Kruss may well have represented to Ms Narayan that her role was required to be financially viable. However, there is nothing in the evidence to indicate that Ms Narayan was made aware that the multi-phase organisational reform strategy might threaten her job security or that the viability of the Marketing Manager role would be determined after only six months in the role.

[59] There were a number of factual disputes between the parties that were explored in cross-examination including whether Ms Narayan had budgetary responsibilities, the extent to which aspects of Ms Narayan's role had been overtaken by automation and distributed to other employees, and whether the Marketing Manager role was growing the business. Ms Narayan disputed that the role of Marketing Manager was no longer required and submitted that the role was still required as it was just rebranded from 'Marketing Manager' to 'Senior Marketing Coordinator' and given a lower salary. Ultimately, for the purpose of determining whether Expo Centric no longer required Ms Narayan's job to be performed by anyone, I do not need to resolve these factual disputes. This is because Mr Kruss confirmed during the hearing that since Ms Narayan's termination, no one has been employed by Expo Centric to perform either the Marketing Manager or the Senior Marketing Coordinator role. Mr Rufatt said that Expo Centric has not proceeded to appoint anyone to the Senior Marketing Coordinator role, as it is not urgent and so far, much of the systems and automation work has alleviated the need for the tasks that this role would undertake.[37]

[60] Ms Narayan did not adduce any evidence which established that Expo Centric has employed a person in the role of either Marketing Manager or Senior Marketing Coordinator since her dismissal. I am therefore satisfied that Expo Centric has made a decision that Ms Narayan's job is no longer required to be performed by anyone.

[61] As to whether there was an ulterior motive for the decision, there is no suggestion that Expo Centric was dissatisfied with Ms Narayan's performance despite Mr Kruss repeatedly questioning Ms Narayan's work during the two-week period prior to the termination. This coincided with Expo Centric engaging in cost-cutting measures, including cancelling subscriptions, reviewing suppliers, and requiring the marketing team to share licences for software. On this basis, it appears that Mr Kruss' excessive questioning of Ms Narayan's role is more likely to have been for the purpose of assessing the viability of her role rather than criticising the quality of her work. There is no evidence to support a finding that Mr Kruss terminated Ms Narayan's employment because he disliked her or was concerned about her performance. In the circumstances, I accept Mr Kruss' evidence that the reason that Expo Centric no longer required the Marketing Manager role was because it wanted to generate business through a business development model rather than a marketing strategy. I find that this was a change in the operational requirements of Expo Centric.

[62] In conclusion, I find that Expo Centric no longer required the Marketing Manager role to be performed by anyone because of changes in its operational requirements.

Did Expo Centric comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

[63] Expo Centric claimed that discussions were held with Ms Narayan in the lead-up to the changes that ultimately affected her role. Expo Centric said that these discussions were both formal and informal in nature and occurred over several months.[38] Ms Narayan said that she and her colleagues were constantly looking to work in the most efficient way but that she did not know her employment may be affected by any changes until the day of her termination.

[64] Ms Narayan's Employment Contract provided that the terms and conditions of her employment would be in accordance with the Contract and, where applicable, the Amusement Award. Expo Centric said that Ms Narayan was not covered by a modern award, therefore it was not required to comply with any consultation obligations. Ms Narayan submitted that she was covered by the Amusement Award as it applied to the work performed by Expo Centric, applied to roles with supervisory and managerial responsibilities and it did not exclude employees in marketing roles. Ms Narayan said that the most appropriate classification for her was level 7.

[65] Clause 4.1 of the Amusement Award provides:

This industry award covers employers throughout Australia in the amusement, events and recreation industry and their employees in the classifications set out in this award to the exclusion of any other modern award.

[66] Clause 4.2(a) defines the 'amusement, events and recreation industry' as the operation of:

(i) leisure and recreation facilities and centres;

(ii) sporting, exhibition, convention and amusement complexes;

(iii) theme parks;

(iv) heritage, tourism and cultural centres;

(v) museums and galleries;

(vi) zoos, animal parks and aquariums;

(vii) agricultural and horticultural shows;

(viii) carnivals and amusement parks;

(ix) ten pin bowling venues;

(x) go-kart racing venues;

(xi) amusement arcades, including video game and pinball parlours; and

(xii) golf facilities including but not limited to golf clubs, on-course and offcourse golf shops and driving ranges.

[67] Clause 4.2(c)(i) relevantly provides that the amusement, events and recreation industry also includes employers engaged in the supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated componentry for the trades and public promotions industry. Ms Narayan submitted that this describes the work of Expo Centric which was not disputed by Expo Centric.

[68] Clauses 4.2(b) and the balance of (c) contain a number of other qualifications and clarifications in relation to the definition of the 'amusement, events and recreation industry' which are not relevant to the current proceedings.

[69] Clause 2 of the Amusement Award defines 'exhibition employees' as employees of employers engaged in the supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated componentry for the trades and public promotions industry.

[70] Schedule B provides for the Hourly Rates of Pay for employees other than Exhibition Employees. Schedule C provides for the Hourly Rates of Pay for Exhibition Employees as follows:

Grade 2 (General hand)
Grade 4 (Exhibition technician)
Grade 5 (Supervisory exhibition technician)

[71] The effect of Schedule C is that exhibition employees are only classified at grades 2, 4 or 5 of the Amusement Award.

[72] Based upon the definition of the term in clause 2 of the Amusement Award, I find that Ms Narayan was an 'exhibition employee' when she was employed by Expo Centric. However, Ms Narayan was not employed as a General hand, Exhibition technician or Supervisory exhibition technician and as such would not be regarded as an 'employee in the classifications set out in this award'. Although Ms Narayan could potentially meet the definition of a level 7 employee, this classification does not appear to apply to exhibition employees as the pay rates for this classification appear to apply only to employees other than exhibition employees. It follows that the Amusement Award did not apply to Ms Narayan's employment so the consultation clause at clause 27 did not apply. This is the case although Ms Narayan's Employment Contract refers to the Amusement Award, as the issue of award coverage is determined by the terms of the relevant award, not the terms of a contract of employment.

Would it have been reasonable in all the circumstances for Ms Narayan to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer

[73] It is well established that 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. It is expected that the employer would adduce evidence in relation to the steps taken by the employer to identify other work which could be performed by the dismissed employee.[39]

[74] Ms Narayan provided evidence of the position of Senior Marketing Coordinator being advertised on at least three occasions, including the day before her employment was terminated. Ms Narayan submitted that it would have been reasonable in all of the circumstances for Ms Narayan to be redeployed to this position.

[75] The evidence from Expo Centric about whether there was a redeployment opportunity for Ms Narayan was confusing and inconsistent. In his evidence, Mr Kruss claimed that the first advertisement for the Senior Marketing Coordinator position was for internal benchmarking and did not reflect an actual open position. Mr Kruss said that subsequently, Expo Centric advertised a Senior Marketing Coordinator position on 9 March 2025. Notwithstanding these claims, Mr Kruss said that Expo Centric invited Ms Narayan to express interest in the Senior Marketing Coordinator position on three different occasions including 28 February 2025. Mr Kruss did not provide any details about who on behalf of Expo Centric had the conversation with Ms Narayan on 28 February 2025 about the redeployment opportunity.

[76] It does not make sense for Mr Kruss to claim on one hand that the first advertisement on 27 February 2025 was for a position which did not exist and then to say that Ms Narayan was offered the same position the following day.

[77] Mr Kruss' evidence was contradicted by the Form F3 Employer response to unfair dismissal application in which Expo Centric claimed that 'it was not reasonable in all the circumstances to redeploy the Applicant within Expo Centric's enterprise, particularly given that she was not suitable for any available roles'.[40] Further, Mr Rufatt also contradicted Mr Kruss' evidence by stating that 'Ms Narayan was not considered for this role because it was substantively different in function, level, and purpose. It was designed for a different operating model.'[41]

[78] Mr Kruss' evidence that the Senior Marketing Coordinator position was offered to Ms Narayan on three occasions, including on the date of termination, appears to be a concession by Mr Kruss that there was a job or a position or other work within the enterprise of Expo Centric to which it would have been reasonable in all the circumstances to redeploy Ms Narayan. As such, I accept that this is the case and note that this finding is supported by the advertisement which Ms Narayan provided to the Commission. However, I do not accept that this role was offered to Ms Narayan at the time of termination. I accept Ms Narayan's evidence that there was no discussion about redeployment at the time of termination. If redeployment had been discussed, I would have expected this to be referred to in the letter of termination or the subject of separate correspondence. However, this was not the case. I note that there is evidence that Expo Centric offered Ms Narayan the role on 4 April 2025 only after Ms Narayan instructed a lawyer to write to Expo Centric about the dismissal. I accept that Ms Narayan did not accept the offer at that time or on 12 May 2025 because she did not regard the offers as genuine. In my view, it was reasonable for Ms Narayan to believe that the offers were intended to create the impression of procedural compliance with legal obligations, rather than representing sincere or meaningful opportunities for continued employment and to reject the offers on that basis.

[79] Based on the evidence before me, I find that it would have been reasonable in all the circumstances for Ms Narayan to be redeployed to the position of Senior Marketing Coordinator on 28 February 2025 rather than being dismissed. As such, the dismissal was not a case of genuine redundancy.

[80] Having considered each of the initial matters, I am required to consider the merits of Ms Narayan's application.

Was the dismissal harsh, unjust or unreasonable?

[81] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

(g) 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

(h) any other matters that the FWC considers relevant.

[82] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[42]

[83] In relation to s.387(a), (b), (c) and (e), as the dismissal was not related to Ms Narayan's capacity, conduct or unsatisfactory conduct, these matters are neutral considerations.

[84] Section 387(d) deals with any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. The evidence establishes that Expo Centric did not notify Ms Narayan prior to the meeting that the purpose of the meeting was to advise her of the dismissal and did not provide Ms Narayan with an opportunity to bring a support person to the meeting. It is not the case that Expo Centric refused a request by Ms Narayan to have a support person present at the meeting. However, the fact that Ms Narayan was deprived of a proper opportunity to request a support person is a matter which is relevant to my consideration under s.387(h).

[85] Section 387(g) deals with 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. Expo Centric submitted that human resources expertise was available via in-house specialists and external employment lawyers.

[86] Section 387(f) deals with the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal. Expo Centric submitted that the size of its business did not affect the process.

[87] Section 387(h) deals with any other matters that the FWC considers relevant. I now consider these matters below.

[88] As already noted, the decision by Expo Centric to employ a Marketing Manager was essentially an impulsive short-term experiment. The experiment was devised without regard to the significant financial and personal consequences to the person, in this case, Ms Narayan, impacted by its inevitable failure. It was open for Expo Centric to engage the Marketing Manager role on a temporary contract and to make it clear in the contract that the role would be filled on a permanent basis once the role was assessed to be viable, contingent on specific measurable criteria being met. Instead, Expo Centric recruited for 'an experienced and visionary individual to join our team' in a 'key leadership role'...'crucial for driving business growth, establishing brand presence, and generating leads' with a 'minimum of 10 years of experience in digital marketing, with a proven track record of success', 'strong leadership and team management skills, with experience leading and motivating diverse teams' and 'Bachelor's degree in Marketing, Business, or a related field; advanced degree preferred.'[43] It is reasonable to infer that Expo Centric would never have been able to attract a candidate who met such high standards if the candidate was aware that the position would be deemed unviable after only six months. In the circumstances, I find that the failure of Expo Centric to confirm the potential temporary nature of the Marketing Manager role, beyond the probation period, in Ms Narayan's Employment Contract, to be a matter which weighs in favour of a finding that the dismissal was unfair.

[89] I also find that the way in which Mr Kruss notified Ms Narayan of the termination of her employment was unnecessarily heartless and lacking in empathy. Regardless of whether the consultation clause in the Amusement Award applied, there was no reason why Mr Kruss could not have provided Ms Narayan with advance notice of the impending redundancy and an opportunity to seek advice and prepare for the meeting which led to the termination of her employment. If Ms Narayan had been provided with this information, she would have had a better understanding of the operational reasons for the redundancy and perhaps been able to negotiate working during her notice period to increase her chances of obtaining alternative employment. I find that Expo Centric's failure to provide Ms Narayan with advance notice of the impending redundancy and an opportunity to seek advice, organise a support person and prepare for the meeting to be matters which weigh in favour of a finding that the dismissal was unfair.

[90] Further, I find that Expo Centric's failure to redeploy Ms Narayan to the position of Senior Marketing Coordinator on 28 February 2025 resulted in Ms Narayan incurring financial loss and is likely to have impeded her prospects of obtaining alternative employment. This is a matter which weighs in favour of a finding that the dismissal was unfair.

Is the Commission satisfied that the dismissal of Ms Narayan was harsh, unjust or unreasonable?

[91] I have made findings in relation to each matter specified in s.387 as relevant.

[92] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[44]

[93] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Ms Narayan was harsh, unjust and unreasonable because Expo Centric failed to

Confirm the potential temporary nature of the Marketing Manager role, beyond the probation period, in Ms Narayan's Employment Contract;
Provide Ms Narayan with advance notice of the impending redundancy and an opportunity to seek advice, organise a support person and prepare for the meeting on 28 February 2025; and
Redeploy Ms Narayan to the position of Senior Marketing Coordinator on 28 February 2025

[94] I am therefore satisfied that Ms Narayan was unfairly dismissed within the meaning of s.385 of the FW Act.

[95] Being satisfied that Ms Narayan made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order Ms Narayan's reinstatement, or the payment of compensation to Ms Narayan.

[96] Under s.390(3) of the FW Act, I must not order the payment of compensation to Ms Narayan unless:

(a) I am satisfied that reinstatement of Ms Narayan is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of Ms Narayan inappropriate?

[97] Expo Centric submitted that reinstatement of Ms Narayan as a Marketing Manager is not practicable as the role has been abolished. However, Expo Centric said that it would be willing to reinstate Ms Narayan to the Senior Marketing Coordinator role which Expo Centric claims to have offered Ms Narayan on three occasions on 28 February 2025, 4 April 2025, and 12 May 2025.

[98] Ms Narayan has given evidence that it is likely that she would have accepted the Senior Marketing Coordinator if it had been offered to her on 28 February 2025. Ms Narayan believes that the offers made on 4 April 2025 and 12 May 2025 are not genuine and have only been made to avoid liability in relation to the unfair dismissal claim. Ms Narayan is also concerned that her employment would not be secure if she was reemployed by Expo Centric.

[99] I have already indicated that I consider Ms Narayan's belief that the offers made on 4 April 2025 and 12 May 2025 were not genuine to be a reasonable one. This is particularly so given my findings that the Senior Marketing Coordinator role existed on 28 February 2025 and was not offered to Ms Narayan at this time. Further, Expo Centric has a history of impulsive decision making in relation to marketing roles so it is possible that the Senior Marketing Coordinator role is in fact, a temporary rather than a permanent position. Finally, I note that Ms Narayan has secured employment at a comparable salary to the Marketing Manager role, so reinstating her to the Senior Marketing Coordinator, which is a lower paid role, would not benefit Ms Narayan in any practical way. For all of these reasons, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[100] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, '[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one...'[45]

[101] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[46]

[102] Ms Narayan submitted that payment of compensation is appropriate. Expo Centric submitted that payment of compensation is not appropriate in circumstances where the dismissal was for reasons of genuine redundancy and Ms Narayan was paid all of her entitlements at termination.

[103] Ms Narayan said that during the three months she was unemployed, she experienced significant financial stress. Ms Narayan said that her savings were quickly depleted as she continued to meet essential obligations, including mortgage repayments, bills, and car registration. Ms Narayan said that she also had legal fees to pay. Ms Narayan said that the fear of falling behind on her mortgage and facing potential bankruptcy or losing her home caused her considerable anxiety and periods of depression. Ms Narayan said that living alone and being solely responsible for her mortgage, she was confronted with the very real possibility of losing her home, without knowing when she might secure stable employment. As a result, Ms Narayan significantly reduced her social interactions and gave up activities she normally enjoyed, as she could not afford any non-essential expenses.[47]

[104] I accept Ms Narayan's evidence that she has suffered financial loss because of the dismissal. I therefore consider that an order for payment of compensation is appropriate.

Compensation - what must be taken into account in determining an amount?

[105] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Narayan in lieu of reinstatement including:

(a) the effect of the order on the viability of Expo Centric's enterprise;

(c) the remuneration that Ms Narayan would have received, or would have been likely to receive, if Ms Narayan had not been dismissed;

(d) the efforts of Ms Narayan (if any) to mitigate the loss suffered by Ms Narayan because of the dismissal;

(e) the amount of any remuneration earned by Ms Narayan from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by Ms Narayan during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

[106] I consider all the circumstances of the case below.

Effect of the order on the viability of Expo Centric's enterprise

[107] There was no evidence adduced by either party as to whether an order for compensation would have an effect on the viability of Expo Centric's enterprise so I make no findings in relation to this matter.

[108] Ms Narayan's length of service was just over six months. I consider that Ms Narayan's length of service does not support reducing or increasing the amount of compensation ordered.

Remuneration that Ms Narayan would have received, or would have been likely to receive, if Ms Narayan had not been dismissed

[109] As stated by a majority of the Full Court of the Federal Court:

[i]n determining the remuneration that the applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.[48]

[110] If Ms Narayan was not dismissed and offered the Senior Marketing Coordinator role, I find that she would have accepted the role and remained in that role while looking for employment equivalent to the Marketing Manager role. Ms Narayan obtained employment on 2 June 2025, so she was unemployed for a period of 13 weeks. Although I believe that it is possible that Ms Narayan would have obtained employment earlier than 2 June 2025 if she had remained employed at Expo Centric while looking for work, it is appropriate to make a finding that Ms Narayan would have remained employed in the Senior Marketing Coordinator until 2 June 2025 in the absence of evidence to the contrary. Mr Rufatt's evidence was that the Senior Marketing Coordinator role has a salary range of $75,000 - $90,000. I believe that Ms Narayan would have been paid at the top of this range if she had been offered the role on 28 February 2025 given her skills and experience.

[111] If Ms Narayan had continued employment with Expo Centric as a Senior Marketing Coordinator, I believe that:

Expo Centric would have agreed to continue paying the Marketing Manager salary to Ms Narayan for a period of two weeks until Friday 14 March 2025 reflecting the notice period under the Employment Contract; and
Ms Narayan would have commenced in the Senior Marketing Coordinator role on Monday 17 March 2025 on a salary of $90,000 and continued in that role until commencing new employment on 2 June 2025.

[112] Consequently, Ms Narayan would have received the amount of $24,038.47 if she had not been dismissed comprising of:

$5,000 for the two week period from 28 February 2025 - 14 March 2025 ($130,000/52 X 2); and
$19,038.47 for the 11 week period from 17 March 2025 - 2 June 2025 ($90,000/52 X 11)

Efforts of Ms Narayan to mitigate the loss suffered by Ms Narayan because of the dismissal

[113] Ms Narayan must provide evidence that she has taken reasonable steps to minimise the impact of the dismissal.[49] What is reasonable depends on the circumstances of the case.[50]

[114] Ms Narayan provided detailed evidence about her attempts to mitigate her loss. Ms Narayan said that since being made redundant from Expo Centric, she applied for 188 roles in her field as a Marketing Manager. Out of those applications, eight companies contacted Ms Narayan to proceed with the interview process. While Ms Narayan's primary goal was to secure a full-time position to support herself, she remained flexible, applying for full-time, part-time, casual, and maternity leave contract roles, as well as engaging with recruitment agencies.[51]

[115] Ms Narayan said that she encountered a highly saturated job market, with an overwhelming number of applicants competing for marketing roles. Ms Narayan said that navigating this competitive landscape was particularly challenging without the stability of employment to support her during the process.[52]

[116] Ms Narayan said that given her situation, she chose to be more flexible and applied for roles below the Marketing Manager level, including Marketing Coordinator and Marketing Assistant positions. Ms Narayan engaged with several recruitment agencies about these opportunities. However, they were reluctant to put Ms Narayan's resume forward, expressing concerns about the mismatch between her experience and the role level.[53]

[117] In an effort to broaden her job search, Ms Narayan began exploring opportunities outside of marketing and reached out to friends working in retail and grocery chains. They informed Ms Narayan that these roles typically required prior retail or pick-packing experience, which Ms Narayan does not have. Ms Narayan was eventually referred to a role at Amazon warehouse. No prior experience was necessary, but the position required meeting certain physical requirements, obtaining medical clearances, and being available to work both day and night shifts for a minimum of 40 hours per week. Ms Narayan said that on 11 May 2025, she applied for the warehousing role at Amazon through the Randstad recruitment agency and was subsequently contacted for a phone interview. As part of the screening process, Ms Narayan completed medical questionnaires and underwent drug and alcohol testing to obtain clearance for Amazon's three-day training program. During the same time that Ms Narayan completed drug and alcohol testing for the Amazon role, she was offered and accepted a Marketing position with a company she had interviewed with. Ms Narayan commenced employment on 2 June 2025 and was unemployed for approximately three months.[54]

[118] Expo Centric submitted that Ms Narayan produced evidence of only three job applications made between 1 March 2025 and 2 June 2025 and that public data showed that in July 2025 there were approximately 1,500 Marketing Manager vacancies. In response, Ms Narayan provided screenshots of the files containing the cover letters of the 188 jobs she applied for. I find that Ms Narayan was a credible and reliable witness, and I accept her evidence that she applied for 188 jobs and that she was unemployed for three months. Expo Centric's reliance on data from SEEK is not particularly helpful as it does not address the potential disadvantage that Ms Narayan was likely to face as a candidate applying for a job while unemployed.

[119] Having regard to all of these matters, I am satisfied that Ms Narayan took reasonable steps to mitigate her loss.

Amount of remuneration earned by Ms Narayan from employment or other work during the period between the dismissal and the making of the order for compensation

[120] Ms Narayan's evidence is that she received no income apart from the two week notice period from the date of dismissal until obtaining new employment on 2 June 2025. I understand that from 2 June 2025 the amount earned by Ms Narayan in her new employment is comparable to her Marketing Manager salary.

Amount of income reasonably likely to be so earned by Ms Narayan during the period between the making of the order for compensation and the actual compensation

[121] I understand that the amount of income reasonably likely to be earned by Ms Narayan during the period between the making of the order for compensation and the actual compensation, is comparable to her Marketing Manager salary.

[122] The parties have not made submissions in relation to any other relevant matters.

Compensation - how is the amount to be calculated?

[123] As noted by the Full Bench, '[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[55] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[56]'.[57]

[124] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[125] I have estimated the remuneration Ms Narayan would have received, or would have been likely to have received, if Expo Centric had not terminated the employment to be $24,038.47 on the basis of my finding that Ms Narayan would have remained in employment until 2 June 2025 as a Senior Marketing Coordinator receiving an annual salary of $90,000.

[126] Only monies earned since termination for the anticipated period of employment are to be deducted.[58] I therefore deduct the two week notice period sum of $5,000 from $24,038.47 which leaves an amount of $19,038.47.

[127] I now need to consider the impact of contingencies on the amounts likely to be earned by Ms Narayan for the remainder of the anticipated period of employment.[59] There is no evidence before me which establishes the occurrence of contingencies which might have brought about some change in earning capacity or earnings by Ms Narayan during the anticipated period of employment. I therefore do not consider it appropriate to deduct any amount for contingencies.

[128] I have considered the impact of taxation but have elected to settle a gross amount of $19,038.47 plus superannuation and leave taxation for determination.

[129] Having applied the formula in Sprigg, I am nevertheless required to ensure that 'the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,'[60] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that the amount does not include a component compensating for shock, distress or humiliation.

Compensation - is the amount to be reduced on account of misconduct?

[130] I am satisfied that misconduct of Ms Narayan did not contribute to the employer's decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.

Compensation - how does the compensation cap apply?

[131] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

Irene Narayan v Expo Centric Pty Ltd [2025] FWC 3123

At a glance

Court

Decision date

Source

Judgment (240 paragraphs)

Irene Narayan v Expo Centric Pty Ltd [2025] FWC 3123 (22 October 2025)

Parties

Legislation Cited (1)

Cases Cited (2)