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[2020] FWC 3937
defendant. Jurisdictional objection upheld; applicant's unfair dismissal application dismissed because the dismissal was a genuine redundancy under s 389 of the Fair Work Act 2009 (see [56]–[61]).
The Commission found that Virgin Australia's restructuring of lounge supervision reduced the number of Lounge Supervisor jobs from eight to five, so three Lounge Supervisor jobs (including the applicant's) were no longer required. The employer complied with consultation obligations in the applicable Award and made reasonable redeployment efforts. Because no reasonable redeployment was available and the statutory test in s 389 was satisfied, the dismissal was a genuine redundancy. The employer's jurisdictional objection succeeded and the unfair dismissal application was dismissed (decision dated 28 July 2020).
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The Fair Work Commission determined a jurisdictional objection in an unfair dismissal application brought by Jennifer Wardle against Virgin Australia Airlines Pty Ltd (Administrators appointed). The applicant had been a Lounge Supervisor at Sydney airport. As part of a larger 'rightsizing program' announced after substantial financial losses, Virgin restructured its lounge operations and amalgamated eight Lounge Supervisor positions into five new Customer Experience Supervisor roles at Sydney airport (see [6]–[9], [36]–[38]). The employer ran a selection process and retained five employees in the new roles; three employees, including the applicant, were advised they would be made redundant. The applicant was given written notice dated 5 December 2019 that redundancy would take effect on 17 January 2020; the employer indicated it would continue to consider redeployment up to that date (see [11]).
The employer proposed potential redeployment options (Cabin Crew and part‑time Guest Services) which the applicant rejected on grounds of unsuitability and reduced remuneration (see [12], [49]–[51]). The applicant lodged an unfair dismissal application on 6 February 2020 (see [2]). The employer raised a jurisdictional objection under s 396(d) of the Fair Work Act 2009 asserting the dismissal was a genuine redundancy; the Commission was directed to decide that preliminary matter and did so on the filed documentary material without a formal hearing (see [3]–[5], [30]).
Commissioner Cambridge found for the employer. The Commission held that (a) the job no longer existed because operational requirements changed and the number of roles was reduced (s 389(1)(a)); (b) the employer complied with the consultation obligations in the Airline Operations - Ground Staff Award 2010 (s 389(1)(b)); and (c) it would not have been reasonable in all the circumstances to redeploy the applicant within the employer's enterprise or that of an associated entity (s 389(2)). The dismissal was therefore a genuine redundancy and the unfair dismissal application was jurisdictionally barred and dismissed (see [36]–[38], [41]–[44], [49]–[55], [58]–[61]).
The Commission's analysis focused strictly on the statutory test in s 389 of the Fair Work Act 2009. The judge outlined the three elements required to establish genuine redundancy: two affirmative elements in s 389(1) and a negatory element in s 389(2) which would negate a finding of genuine redundancy if reasonable redeployment was available (see [32]–[35]).
Job lost due to operational requirements (s 389(1)(a)): The employer's restructure reduced eight Lounge Supervisor positions to five Customer Experience Supervisor positions. The Commission treated the "job" as distinct from the "work performed by an individual" and concluded that the job of Lounge Supervisor, as such, no longer existed for three employees. The redistribution of tasks to remaining staff did not prevent a finding that the job was no longer required (see [36]–[38]).
Consultation obligations (s 389(1)(b)): The applicable Award (Airline Operations - Ground Staff Award 2010) contained clause 9 requiring notice, discussion and provision of relevant written information when an employer makes major changes likely to have significant effects on employees (see [40]). The employer provided a comprehensive consultation pack, draft position descriptions, consultation meetings, invited feedback and confirmed outcomes in writing. The Commission found these steps met the Award's consultation obligations (see [41], [44]).
Redeployment (s 389(2)): The Commission assessed reasonableness of redeployment by looking at employer and employee conduct and the practical constraints arising from the wider rightsizing program (see [45]–[48], [49]). Two avenues existed: Cabin Crew roles (unsuitable due to travel obligations) and part-time Guest Services roles (significant pay reduction). The applicant contended that she should have been offered a full-time Guest Services vacancy; the Commission found clause 21.4 of the Virgin Ground Crew Agreement (referred to in the decision) required full-time Guest Services vacancies to be offered first to part-time employees under the Agreement, so the employer lawfully filled the full‑time vacancies with those part-time employees, leaving only part-time vacancies available for redeployment of someone in the applicant's position (see [51]–[53]). Given these constraints, the Commission concluded no reasonable redeployment was possible and that s 389(2) did not apply (see [54]–[55]).
The Commission also emphasised that selection processes used to determine which employees are made redundant are not directly relevant to the s 389 inquiry unless the selection process itself breaches another legal obligation (for example a general protections breach) (see [17], [43]).
Because the statutory test was satisfied, the dismissal was a genuine redundancy and the employer's jurisdictional objection succeeded (see [56]–[61]).
Before this decision: The legal framework for genuine redundancy was governed by s 389 and had been applied repeatedly. The decision cites and relies on prior decisions, notably Klavs v Prestige Painters (2013 FWC 2485) to support the proposition that selection process details are not relevant to the statutory redundancy inquiry unless other breaches are present (see [43]). It also references the Full Bench's decision in Ulan Coal Mines (2010 FWAFB 7578) on redeployment principles and confirms that line of authority (see [55]).
After this decision: The Commission applied established principles rather than creating new law. The decision reinforces three established points within the Fair Work Commission's jurisprudence: (a) a job can be extinguished by a restructure even where retained employees perform redistributed work (para [37]); (b) compliance with award/agreement consultation clauses is an independent requirement of s 389(1)(b) and can be satisfied by thorough communication, meetings and written confirmations (paras [40]–[44]); and (c) redeployment is a fact-sensitive assessment; practical constraints and agreement‑based priority rights (clause 21.4 in this case) can lawfully limit redeployment options so s 389(2) is not engaged (paras [49]–[55]).
Thus the decision is consistent with prior Commission jurisprudence and functions as an application of settled principles to the facts of a large-scale corporate restructure.
Paragraph 32 (statutory test): The decision reproduces s 389. Plain English: To be a genuine redundancy, the employer must no longer need the job to be done because of business changes, and must have complied with required consultation. Also, if it would have been reasonable to move the person into another job within the company (or associated entity), then it is not a genuine redundancy.
Paragraph 37: "The redistribution or reassignment of work amongst retained employees does not alter the fact that a job ... was no longer required." Plain English: Even if the tasks someone did are still done by others after a restructure, that does not stop the old job being considered gone if the employer reduced the number of positions.
Paragraph 41–44: Employer provided a consultation pack, meetings and wrote to affected staff; Award clause 9 did not require disclosure of selection process details. Plain English: The employer gave the information and opportunities to discuss that the Award requires. The law does not force an employer to explain every detail of how it chose who stayed, unless another law says so.
Paragraph 54: "No criticism can be made of the approach to redeployment ... no reasonable redeployment could be arranged despite the genuine attempts made by both the employer and the employee." Plain English: Both sides tried, but the available roles either were unsuitable or were not available to the applicant under the agreement rules, so it was not reasonable to move her into another job.
This decision is directly relevant where:
An employer restructures positions and reduces the number of jobs in a particular classification (for example eight positions reduced to five), and disputes arise about whether specific dismissals are genuine redundancies (see [36]–[38]).
An employer follows an Award or enterprise agreement consultation clause by giving written information, holding meetings and inviting feedback, and seeks to rely on that compliance under s 389(1)(b) (see [40]–[44]).
Redeployment options are limited by enterprise agreement clauses that give priority to particular cohorts (such as part‑time employees seeking full‑time vacancies) or by the practical constraints of a large-scale workforce reduction (see [49]–[53]).
An employee contests not being given feedback about selection or disputes the selection process but there is no allegation of a separate legal breach (e.g. discrimination or general protections), so the employer's redundancy defence under s 389 is the focus (see [42]–[44]).
If a fact pattern involves an employer who reduced job numbers, complied with consultation, and can show redeployment was not reasonable in all circumstances, this decision demonstrates how the Commission will apply s 389 to find genuine redundancy.
This decision itself cites earlier Commission decisions (Klavs and Ulan Coal Mines) to situate its reasoning (see [43], [55]). It applies those authorities rather than distinguishing them. The decision reinforces the settled Commission approach. Any later court or Commission consideration would look to whether the three statutory elements were properly applied on the facts, and whether redeployment reasonableness was assessed comprehensively taking into account agreement-driven priority rules and the scale of restructuring. This particular decision is an application of existing Full Bench authority (Ulan) and an earlier Commission decision (Klavs) and thus operates as an instance of those lines of authority being followed (see [43], [55]).
While the decision applies established law, it highlights areas that commonly generate contest:
Level of detail required in 'consultation': The Commission accepted the employer's consultation steps. But in other contexts, how much bespoke information or individualised feedback is necessary to satisfy an Award or agreement clause may remain contentious, particularly where instruments contain more detailed consultation or transparency obligations (compare to [40]–[44]).
Interaction between selection process fairness and s 389: The Commission reiterates that selection methodology is not directly material to genuine redundancy absent another breach (see [17], [43]). However, in cases where selection process flaws amount to discrimination, adverse action, or breach of agreement terms, the interplay between those claims and a s 389 defence may remain fertile litigation terrain.
Redeployment reasonableness where agreement clauses create priority rights: This decision relied on clause 21.4 to explain why full‑time Guest Services vacancies were not available to the applicant (see [52]–[53]). Questions may arise in differently worded agreements about whether employers can circumvent redeployment obligations by relying on priority schemes, and how courts will balance industrial instrument entitlements against the s 389(2) redeployment inquiry.
Scale and timing issues in mass redundancies: The decision recognises significant scale (circa 750 roles) affected practical redeployment. Future disputes may test how firms must structure redeployment exercises and selection transparency in very large restructures, particularly where redeployment windows, recruitment timing and notice periods overlap.
All of these remain fact-sensitive and will depend on the precise contractual, award and factual matrix in each matter.
Disclaimer: This is a structured analysis of the Fair Work Commission decision in Jennifer Wardle v Virgin Australia Airlines Pty Ltd [2020] FWC 3937 (28 July 2020), grounded in the judgment text. It is legal information, not legal advice. I can be mistaken. Before you rely on this analysis, consult a qualified Australian lawyer.
s.394 - Application for unfair dismissal remedy
Virgin Australia Airlines Pty Ltd (Administrators appointed)
Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy established - jurisdictional objection upheld.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 6 February 2020. The application was made by Jennifer Wardle (the applicant) and the respondent employer is Virgin Australia Airlines Pty Ltd (Administrators appointed) (the employer).
[2] The application indicated that the date that the applicant's dismissal took effect was 17 January 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation. The employer raised a jurisdictional objection to the application on the basis that the dismissal was alleged to be a case of genuine redundancy (the genuine redundancy objection). The matter was the subject of a Pre-Hearing Conference/Conciliation by telephone proceedings held on 26 March 2020, at which time the Commission made Directions for the Parties to file and serve all material upon which each would rely in respect to the determination of the genuine redundancy objection.
[4] Subsequently, the employer and the applicant have provided their respective materials in accordance with Amended Directions that were issued on 7 May 2020, and which culminated on 26 June 2020, with each side confirming agreement to have the genuine redundancy objection determined upon the filed documentary material and without the need for any formal Hearing.
[5] The application was the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant's dismissal was a case of genuine redundancy. Consequently, the employer advanced a jurisdictional challenge to the application relying upon the requirements of (d) of the Act which stipulates that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration of the merits of the application.
[6] On 28 August 2019, the employer announced it's 2019 financial year results which included an Underlying Loss Before Tax of $71.2 million, and a total annual loss of $315.4 million. In a message from the employer's Chief Executive Officer, Paul Scurrah, the employer announced a series of measures that it would implement to redress its financial losses. One of these measures was an organisational restructure described as a "rightsizing program" that aimed to reduce 750 corporate and Head Office roles during FY20 which was estimated to reduce costs by $75 million.
[7] On 21 November 2019, as part of the previously announced "rightsizing program", the employer commenced a consultation process in respect to a restructure of staff engaged in providing services at its airport lounges. At Brisbane, Canberra, Melbourne, Perth and Sydney airports, the employer operated two types of airport lounge facilities for its customers. At these locations the employer operated a Virgin Australia lounge facility and a separate Club lounge. The Virgin Australia lounge is generally accessible to frequent flyer customers and business class travellers, while the Club lounge is only accessible to persons who are provided an invitation from the employer's Chief Executive Officer, Paul Scurrah.
[8] At Sydney airport, the employer had eight Lounge Supervisors, three of which were allocated to the Virgin lounge, and five were allocated to the Club lounge. The restructure that was proposed and subsequently implemented by the employer, amalgamated the Lounge Supervisor roles previously delineated between the two lounges. The restructure replaced the eight Lounge Supervisor positions with five newly created Customer Experience Supervisor positions involving work in respect of both lounges. Consequently, the restructure resulted in the reduction of three Lounge Supervisor positions at Sydney airport.
[9] The applicant was one of the eight Lounge Supervisors who were directly impacted by the restructure. The role performed by the applicant and that of the other seven Lounge Supervisors, was made redundant, and replaced by the five Customer Experience Supervisor positions. The employer invited expressions of interest for voluntary redundancy from the eight Lounge Supervisors. None of the eight Lounge supervisors expressed any interest to take up a voluntary redundancy. Therefore, the restructure would involve three of the individuals who had occupied the Lounge Supervisor positions being made involuntarily redundant.
[13] In the absence of any redeployment of the applicant, on 17 January 2020, the employment of the applicant was terminated by reason of redundancy and in accordance with the termination advice provided in the correspondence of 5 December 2019.
[14] The submissions made by the employer in support of the genuine redundancy objection included an outline of submissions document dated 7 May 2020 and an outline of submissions in reply document dated 18 June 2020. The employer submitted that the dismissal of the applicant was a case of genuine redundancy, the jurisdictional objection should be upheld, and the unfair dismissal claim should be dismissed.
[15] The employer's submissions referred to ss. 385 and 389 of the Act which firstly established that a person could not be unfairly dismissed if the dismissal was a case of genuine redundancy, and secondly provided a definition for the meaning of genuine redundancy. The submissions of the employer focused upon the provisions of s. 389 of the Act regarding the meaning of genuine redundancy.
[16] It was submitted that the applicant's job was no longer required because of the clear operational requirements which underpinned the employer's decision to make approximately 750 positions, including that performed by the applicant, redundant. Consequently, according to the submissions of the employer, the "rightsizing program" involved inter alia, the restructure in the staffing requirements for the Virgin lounge and the Club lounge at Sydney airport. As a result of this restructure, the employer no longer required the job performed by the applicant as she was one of the three Lounge Supervisors who were not selected for the five Customer Experience Supervisor roles in Sydney.
[17] The employer also submitted that whilst the selection process that it had adopted for determining which three of the eight Lounge Supervisors at Sydney would be made redundant was objectively fair and reasonable, it was well established that the process for selecting which employees are to be made redundant is not relevant to any determination as to whether the dismissal was or was not a case of genuine redundancy in the context of of the Act. Further, the employer submitted that it did not matter if some of the applicant's duties as a Club Supervisor remained to be performed by the Customer Experience Supervisors because the test was whether the previous job had survived the restructure or downsizing. The employer submitted that the applicant's role had not survived because there had been a reduction in the number of the roles from eight to five. Therefore, the employer submitted that (1) (a) of the Act had been satisfied.
[23] The applicant made written submissions which firstly stated; "This has been an extremely stressful process which is only amplified by the COVID 19 Pandemic. I would expect that Virgin Australia would take this into consideration and make it a priority since this is been weighing on me since December 2019."
[24] The applicant made further submissions which asserted that the employer had misrepresented the operation of Virgin Australia Ground Crew Agreement 2018 (the Agreement) as it was said to prevent any offer to her of a full-time Guest Services position. The applicant referred to clause 21.1 of the Agreement which she stated referred to external contractors and as she was not an external contractor, she should have been considered for one of the seven full-time Guest Services positions.
[25] The applicant also submitted that she possessed all the relevant and necessary experience and skills to fill the full-time Guest Services position without requiring any training. The applicant challenged that the part-time employees who were employed into the full-time Guest Services positions had the level of experience and skills that she possessed. Consequently, the applicant asserted that if she had been redeployed into one of these full-time Guest Services positions the outcome would have been optimal for both parties and reduced harm and distress for her.
[26] Further, the applicant stated that she found it baffling that she had not been selected to fill one of the Customer Experience Supervisor positions. The applicant complained that she had not been provided with feedback or some explanation for the basis upon which she had not been successful in the selection process for filling the Customer Experience Supervisor positions. The applicant submitted that as she had been working in the role of Lounge/Club supervisor for 2 to 3 years and had never been given a performance review, she found it hard to believe that there was sound basis for the selection process for which she had been unsuccessful.
[27] The applicant also made submissions which raised complaint about the employer not fulfilling obligations in respect of staff travel after her redundancy. The applicant stated that because of the circumstances surrounding COVID 19, the provision of staff travel for six months following redundancy provided little or no benefit and the employer should review these arrangements.
[29] This Decision has been confined to the determination of a jurisdictional objection which was advanced by the respondent employer.
[30] Relevantly s. 396 of the Act requires that the Commission must decide a number of specified matters before considering the merits of any unfair dismissal application made under s. 394. In this instance, the jurisdictional objection arises from the provisions of subsection 396 (d) of the Act. The particular provisions of s. 396 of the Act are:
"396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 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."
[31] The Act establishes that a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy. This position arises from the terms of subsection 385 (d) of the Act:
A person has been unfairly dismissed if the FWC 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."
[32] Section 389 of the Act provides for a meaning of genuine redundancy:
(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."
[33] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.
[34] For convenience the three elements identified within s. 389 can be abbreviated under the following headings. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as "job lost due to operational requirements", the second affirmative element extracted from subsection 389 (1) (b) has been called "consultation obligations", and the third negatory element found in subsection 389 (2) is abbreviated to be "reasonable redeployment".
[35] Consequently, the approach to consideration of the question of whether the dismissal of the applicant was a case of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.
[36] In this instance, the evidence has established that the applicant was one of three Sydney airport Lounge Supervisors who were dismissed on the basis of alleged redundancy. The decision by the employer to dismiss these employees was directly connected with a restructure of the Virgin lounge and Club lounge operations. The Virgin lounge and Club lounge restructure was part of a broader operational restructure referred to as a "rightsizing program" and which involved the employer removing approximately 750 positions as one of a series of measures aimed at redressing its deleterious financial position.
[37] The Virgin lounge and Club lounge restructure at Sydney airport involved the reconfiguration of the work that had been performed by eight individuals, three of whom were assigned to the Virgin lounge and five who were assigned to the Club lounge. The work that had been performed by these eight individuals was redesigned to be performed across both lounges and resulted in the requirement for only five persons to fill the Customer Experience Supervisor positions. The evidence established that the work that was previously performed by a total of eight Virgin lounge and Club Lounge Supervisors such as the applicant, was redistributed and reassigned to five employees performing the newly created roles of Customer Experience Supervisor. The redistribution or reassignment of work amongst retained employees does not alter the fact that a job as opposed to the work of an individual was no longer required. In this case, the Virgin lounge and Club lounge restructure at Sydney airport meant that three lounge Supervisor jobs were no longer required.
[38] Consequently, the first element of s. 389 of the Act has been established, that is, the employer no longer required the job of the applicant as a Lounge Supervisor (and two others), to be performed by anyone because of changes in the operational requirements of the employer's enterprise.
[39] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy.
[40] The employment of the applicant was governed by the Airline Operations - Ground Staff Award 2010 (the Award). Clause 9 of the Award relevantly included the following terms:
"9. Consultation about major workplace change
9.1 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):
(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.
9.2 For the purposes of the discussion under clause 9.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(c) any other matters likely to affect employees.
9.3 Clause 9.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.
9.4 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 9.1(b)."
[41] The evidence has established that the employer provided the applicant (and all other Lounge Supervisors), with a comprehensive consultation pack and draft position description documentation. The employer also held a consultation meeting with the affected employees, and it invited their feedback. The employer subsequently confirmed decisions and outcomes in writing.
[42] The applicant made complaint about not being selected for one of the Customer Experience Supervisor positions and not being provided feedback or explanation for why she was not selected. The applicant was dissatisfied with the lack of information provided to her about the basis upon which she was unsuccessful in obtaining one of the Customer Experience Supervisor positions.
[44] In this instance, the evidence has established that the employer adopted a process to implement its operational restructure of the Sydney airport Virgin lounge and Club lounge operations which was compliant with the consultation obligations arising from the provisions of the Award. Consequently, the relevant consultation obligations have been met, and this element of subsection 389 (1) (b) of the Act has been satisfied.
[45] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which possessed the elements of subsection 389 (1) (a) and (b), to not be a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.
[46] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer's actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis having regard for the approach to redeployment adopted by both the employer and the employee.
[47] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which the employer undertook in the pursuit of redeployment both in general application and for individual employees, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicant.
[48] The approach to redeployment adopted by the employer involved, inter alia, the provision to the applicant of the internal career opportunities list. The applicant was invited to identify any positions which she might consider as potential redeployment prospects. Subsequent discussion between the applicant and relevant management personnel then followed.
[49] Unfortunately, in circumstances where the employer was undertaking a significant restructuring involving the loss of approximately 750 positions, there were obvious limitations for redeployment opportunities. There were two potential redeployment opportunities identified, namely Cabin Crew positions, and part-time Guest Services roles.
[50] The applicant's rejection of these potential redeployment prospects was quite understandable. The Cabin Crew positions would have involved a considerable amount of away-from-home work which was not suitable to the personal circumstances of the applicant. The part-time as opposed to full-time Guest Services positions involved a significant reduction in remuneration.
[56] This Decision has been made in respect to a jurisdictional objection raised by the respondent employer to an application for unfair dismissal remedy. The jurisdictional objection has been advanced on the basis that the dismissal was a case of genuine redundancy and therefore, by operation of subsection 385 (d) of the Act, without standing.
[57] The determination of the jurisdictional objection has focused upon the meaning of genuine redundancy as contained in s. 389 of the Act. Section 389 of the Act contains two affirmative elements and one negatory element which must be satisfied in order to establish that a dismissal was a case of genuine redundancy.
[58] In this instance, upon careful analysis and having regard for all of the relevant circumstances, the first two affirmative elements were satisfied. The employer no longer required the applicant's job to be performed by anyone because of changes in its operational requirements, and the employer complied with the relevant consultation obligations stipulated by the Award.
[59] In respect to the negatory element contained in subsection 389 (2) which deals with reasonable redeployment, in all the circumstances the negatory element in subsection 389 (2) was not established. In this regard, no finding could be made that it would have been reasonable in all the circumstances for the applicant to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer.
[60] Therefore, the dismissal of the applicant was a case of genuine redundancy in accordance with the meaning of genuine redundancy stipulated by s. 389 of the Act.
[61] In view of the finding made as to genuine redundancy, the jurisdictional objection of the employer is upheld. The application for unfair dismissal remedy is jurisdictionally barred and must therefore be dismissed. An appropriate Order will be issued accordingly.
Printed by authority of the Commonwealth Government Printer
Jennifer Wardle
Virgin Australia Airlines Pty Ltd
Jurisdictional objection upheld; applicant's unfair dismissal application dismissed because the dismissal was a genuine redundancy under s 389 of the Fair Work Act 2009 (see [56]–[61]).
[10] The employer engaged in a selection process to determine which five of the eight Lounge Supervisors would be retained in the Customer Experience Supervisor positions. Following an assessment process involving the application of identified criteria, the applicant was advised that she was one of the three Lounge Supervisors who had been selected for redundancy.
[11] The applicant was provided with a letter dated 5 December 2019, which confirmed earlier verbal advice of her redundancy which was to take effect on 17 January 2020. The letter indicated that the employer had been unable to identify any alternative roles available for the applicant within the Virgin Group. However, the letter also indicated that prior to 17 January 2020, the employer would continue to consider suitable alternative roles to which the applicant may be redeployed.
[18] The employer's submissions also contended that it had complied with the consultation obligations of the industrial instrument that governed the work of the applicant, namely, the Airline Operations - Ground Staff Award 2010 (the Award). Clause 9 of the Award was referred to in the employer's submissions, and it asserted that these consultation requirements had been satisfied by providing the applicant and all other affected employees, comprehensive information, holding a consultation meeting, inviting feedback, and confirming decisions and outcomes in writing. The employer further submitted that it was not required to consult or provide feedback in relation to the reasons for selecting the particular individual Lounge Supervisors including the applicant, who were made redundant.
[19] The employer submitted that its consultation process was comprehensive, thorough, meaningful and in compliance with its legal obligations. Therefore, the employer submitted that subsection 389 (1) (b) of the Act had been satisfied
[20] The employer's submissions also addressed the question of whether subsection 389 (2) of the Act, which was concerned with redeployment, had been satisfied. The employer submitted that any redeployment opportunities needed to be considered in the context of the significant "rightsizing program" that involved a reduction of approximately 750 roles. Further, the employer acknowledged that the redeployment roles that had been offered to the applicant did involve a reduction in salary, however, it submitted that it had reasonably endeavoured to redeploy the applicant in the prevailing circumstances.
[21] The employer submitted that it had reasonably endeavoured to redeploy the applicant and the applicant had rejected those offers of redeployment_._ The employer asserted that it could not otherwise reasonably redeploy the applicant given the prevailing circumstances and including that the applicant's expressed willingness to only accept roles which were of a similar wage or remuneration level to the Lounge Supervisor position.
[22] In summary, the employer submitted that the applicant's dismissal was a case of genuine redundancy because each of the relevant provisions of s. 389 of the Act had been satisfied. Specifically, the employer submitted that it no longer required the applicant's job to be performed by anyone due to changes in the operational requirements of its enterprise. Further, the employer submitted that it had complied with its consultation obligations under the Award, and it would not have been reasonable in all the circumstances, for the applicant to have been redeployed. Consequently, the employer submitted that it's jurisdictional objection should be upheld, and the unfair dismissal application should be dismissed.
[28] In conclusion the applicant stated: "All I expect is to be given a fair opportunity at work on offer knowing I needed a lifeline as much as any other employee of yours. I am a normal worker subject to basic Award fairness protections to mitigate adverse impact, not a high income executive to be hired and fired at the pleasure of the board of directors."
[51] The applicant asserted that she should have been offered an opportunity to fill one of the full-time Guest Services positions that were vacant at the time of the redundancy. Further, the applicant asserted that the employer misrepresented the operation of the terms of the Agreement as they applied to the filling of the vacant full-time Guest Services positions. In support of this argument the applicant referred to clause 21.1 of the Agreement
[52] However, the evidence has established that the filling of the vacancies in the Guest Services positions was a process that was governed by clause 21.4 of the Agreement which contained stipulated arrangements for any vacancy in full-time Guest Services positions to be first offered to part-time employees engaged under the Agreement. Consequently, the employer was required by the terms of the Agreement, to offer vacant full-time Guest Services positions to persons engaged in existing part-time Guest Services positions, before it could contemplate any potential redeployment of a person such as the applicant, who was not employed under the terms of the Agreement.
[53] All of the vacant full-time Guest Services positions were filled by part-time employees engaged under the Agreement. Therefore, the employer could not offer the applicant redeployment into any of the full-time Guest Services positions but only the part-time positions.
[54] In all the circumstances, no criticism can be made of the approach to redeployment adopted by either the employer or the applicant. The circumstances were such that no reasonable redeployment could be arranged despite the genuine attempts made by both the employer and the employee.