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[2024] FWC 2722
respondent. The Commission upheld the Respondent's jurisdictional objection that the dismissal was a genuine redundancy under s 389 of the Fair Work Act 2009 and dismissed the Applicant's unfair dismissal...
The Fair Work Commission found that Mr Kinneally's termination was a genuine redundancy. The employer outsourced much of the complaints and ethical-standards work to an external contractor run by the Applicant's former supervisor. The Commission accepted that the Applicant's job, viewed as the bundle of duties he performed (including an educational component), no longer existed within the employer's organisation. There was no proven award-based consultation obligation; the employer did consult and provided redeployment opportunities but the roles the Applicant sought required substantial retraining. Redeployment was therefore not reasonable and the unfair dismissal application was dismissed (paras [32], [37], [52]-[54], [67]).
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2,047 words · generated 04/07/2026
Joel Kinneally, employed by Surf Life Saving Queensland (SLSQ) as Complaints Manager in the Ethical Standards Department, was advised in early April 2024 that his role was likely to be made redundant as part of an organisational restructure. Around the same time, the employer entered into a services agreement with Spoken Consulting Group Pty Ltd (SCG), a company directed by the Applicant's former supervisor, Ms Kerrie Barnes, which would perform much of the Ethical Standards/complaints functions formerly performed in-house (paras [10]-[16], [31]).
SLSQ wrote to Mr Kinneally on 2 April 2024 inviting consultation; a brief consultation meeting occurred on 3 April 2024 (Ms Barnes acted as his support person); a further meeting occurred on 5 April 2024. SLSQ provided a list of current vacancies and invited the Applicant to seek position descriptions for roles of interest, and ultimately advised that it could not identify any suitable roles for redeployment without substantial retraining. Mr Kinneally was terminated effective 8 April 2024 on the basis his role was redundant (paras [17]-[28], [36]-[43]).
Mr Kinneally applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009. The Respondent raised a jurisdictional objection alleging the dismissal was a genuine redundancy under s 389. The Commission considered the jurisdictional issue first and found in favour of the Respondent, concluding the dismissal was a genuine redundancy and dismissing the application (paras [1]-[3], [65]-[67]).
The decision is grounded on the statutory test for genuine redundancy under s 389 of the Fair Work Act 2009. That test requires, relevantly, that:
The Commission applied established principles that redundancy is concerned with the survival of the job as a whole, a collection of functions, duties and responsibilities, rather than whether some tasks continue to be performed (para [8]). It emphasised that the Commission's role is not to inquire into the reasonableness of the employer's decision to change operational requirements: once a change in operational requirements is established, the Commission need not assess the wisdom of that choice (para [6]).
Factually, the Commission accepted that SCG's services agreement meant that much of the Complaints Manager function was being performed outside the employer's enterprise, and crucially the Applicant's "giant educational component" (training, online education and sessions) was not included in the contractor's scope. That meant the job, in its prior form and as a bundle of duties, no longer existed inside SLSQ (paras [31]-[33]). Thus the first limb of s 389(1)(a) was met.
On consultation, the Commission concluded no award-based obligation to consult could be shown, and in any event SLSQ had engaged in consultation by issuing the redundancy notice, conducting meetings on 3 and 5 April, sending a vacancies list, and inviting the Applicant to request position descriptions (paras [34]-[43]).
Regarding redeployment, the Commission applied the relevant principles from Full Bench authorities and the Full Court: the question is whether there existed, at the time of dismissal, a job within the employer's enterprise (or an associated entity) that it would have been reasonable in all the circumstances to redeploy the employee into; relevant matters include the nature of the role, qualifications required and the employee's skills and whether reasonable retraining could bridge any gap (paras [44]-[46], [45]). The Applicant had indicated interest in three roles; two of those required significant qualifications (a diploma or tertiary degree) and the third (RTO Compliance Officer) was in the process of being filled. The Commission accepted that retraining required to make the Applicant suitable for the two roles would have been substantial, and the Applicant himself had indicated he did not wish to undertake such retraining. The employer had offered the Applicant an opportunity to identify suitable roles and to meet hiring managers to confirm skills; the Applicant did not identify the First Aid Trainer or TAE Trainer roles (which were on the vacancies list) as suitable. On those facts, redeployment was not reasonable in all the circumstances (paras [47]-[64]).
Because all statutory limbs were satisfied, the Commission concluded the dismissal was a genuine redundancy and thus outside the jurisdiction for an unfair dismissal remedy (paras [65]-[67]).
Before this decision, the legal framework for genuine redundancy was well established by Fair Work Commission Full Bench decisions and the Full Court. Key principles include:
This decision applies those settled principles, including recent Full Court authority Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, to the facts of an employer outsourcing a department's functions to a contractor run by a former supervisor. The case reaffirms that outsourcing to an external contractor may satisfy s 389(1)(a) if the job, as previously constituted, no longer exists within the employer, even though some tasks continue to be performed externally (paras [4], [31]-[33]).
The decision does not alter the law; rather it applies existing doctrine to a modern fact pattern (outsourcing to a contractor who had been a supervisor). Practitioners should note the Commission's continuing reluctance to investigate the commercial wisdom of operational decisions and its focus on the statutory criteria.
Quotation and Court text: "A dismissal that is a 'case of genuine redundancy' is immune from relief under Pt 3‑2. That is so even if it might unambiguously qualify as 'harsh, unjust or unreasonable'." (para [4])
Quotation and Court text: "The FW Act does not contemplate any inquiry into the reasonableness of such changes ... Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice." (para [6])
Quotation and Court text: "What is critical ... is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant..." (para [8])
Factual application: "Ms Barnes gave evidence ... the educational component was not part of the work which SCG is contracted to do. Therefore, I am satisfied that the Applicant's role no longer exists within the Respondent's organisation." (para [32])
Procedural point: "There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant." (para [34])
This decision is directly relevant where:
Key triggers are: outsourcing of departmental functions to a contractor; a distinct bundle of duties (e.g. training/education component) that is not transferred; the availability of internal vacancies that are not a 'good fit' without significant retraining.
This judgment itself applies and cites recent higher authority, notably Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 (applied) for the proposition that genuine redundancy is a jurisdictional exclusion even if the outcome is harsh (para [4]). It also follows earlier Commission Full Bench and Full Court reasoning on job-survival and redeployment (Ulan, Pettet, Huang summaries) (paras [8], [44]-[46], [52]). The decision is consistent with existing authorities and is likely to be cited by later Commission cases where outsourcing is the operational step leading to redundancy. It reinforces the pattern that the Commission will focus tightly on the s 389 criteria and not evaluate commercial reasonableness of operational decisions (para [6]).
At the Commission level, this decision will be relied upon to support findings that: (a) outsourcing can constitute operational requirements sufficient for redundancy where the job does not survive in the employer's enterprise; and (b) short consultation periods do not automatically negate genuine redundancy where there was a bona fide opportunity to influence the decision-maker and potential redeployment was explored (paras [34]-[43], [65]).
Boundary between contractor work and employer's enterprise control: The Commission concluded SCG's contracted work meant the job did not survive in SLSQ. Future disputes will test how closely the Commission examines the contractual scope and control over work done by contractors, particularly where contractors are closely connected to former employees or management. This judgment did not have the contractor services agreement on record, so subsequent cases might explore how detailed contract terms should be proven to support a redundancy finding (paras [31], [32]).
The role of third-party relationships in perceived unfairness: This case involved the awkward fact that the Applicant's former supervisor became the contractor performing the work and acted as his support person during consultation. While the Commission noted the awkwardness, it did not treat it as determinative. Future cases may address the extent to which conflicts or perceptions of impropriety in such relationships can influence the assessment of genuineness or consultation sufficiency (para [65]).
Depth and timing of consultation: The Commission accepted relatively short meetings (13 and 19 minutes) as meeting the consultation requirement where vacancies were provided and follow-up opportunities offered. It remains an open factual question how short is too short where the employee alleges consultation was tokenistic. Practitioners should note the Commission's focus on whether there was a bona fide opportunity to influence decision-makers, not on meeting length alone (paras [41]-[43]).
Redeployment versus competitive recruitment: The judgment leaves some practical uncertainty about when a meeting with a hiring manager becomes a mere skills-confirmation step in a redeployment process, and when it effectively subjects the employee to the ordinary competitive recruitment process such that redeployment might be considered unreasonable. That factual line will continue to be litigated (paras [56]-[63]).
Proof required for award coverage: The Commission was not satisfied the Applicant was covered by the Clerks or Miscellaneous awards but did not fully elaborate on the boundary facts. Future cases will need to articulate what evidence suffices to prove award coverage in redundancy disputes (paras [35]-[37]).
Practitioners should therefore ensure: detailed evidence of the contractor's role when outsourcing is relied upon; careful documentation of consultation steps and their substance; clear record of offers or discussions about redeployment, including whether retraining would be reasonable; and evidentiary foundation for any asserted award coverage.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - jurisdictional objection - genuine redundancy - operational requirements - independent contractor - redeployment - jurisdictional objection upheld
Is there a genuine redundancy under s.389(1) of the Act?
There can be little doubt that s 389 of the FW Act - and, more broadly, the significance of "genuine redundancy" to s 385(d) - was intended to narrow the circumstances in which an employee might be said to have been "unfairly dismissed"; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a "case of genuine redundancy" is immune from relief under Pt 3‑2. That is so even if it might unambiguously qualify as "harsh, unjust or unreasonable".[2]
A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer's enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither "in all [of] the circumstances" or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.[6]
"It is noted that the reference in the statutory expression is to a person's "job" no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 a job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee" (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
'What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant...' (at p.308)"
This does not mean that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the "job" of that employee no longer exists.
Surf Life Saving Queensland needs to advise that due to a departmental restructure, SLSQ is planning workplace change that may lead to your current position being made redundant.
SLSQ wishes to meet with you to discuss these changes, inform you of the reasons behind
the changes and to gain your input and ideas before making any decisions in relation to your employment.[13]
I am writing to confirm that Surf Life Saving Queensland has been unable to identify any other suitable roles within SLSQ for redeployment, based on your level of skills and experience or without prior undertaking a substantial period of retraining.
You stated that you have also been unable to identify any other suitable roles within Surf Life Saving Queensland for redeployment.[24]
You have stated due to operational requirements yet have not provided what these are. I note you stated that the role will not be done by anyone at SLSQ, inferring that it will be outsourced, substantiating that it will still be getting done. As notified, I explained that this would be considered a non-genuine redundancy and you have made no mention of this in your letter.[25]
[T]hey have no clue, she started with it being made redundant, without notice, oh and not even genuine redeployment as I would have to interview. No transition training offered.[27]
Following our meeting on Friday 5 April 2024 regarding your current role of Complaints Manager being made redundant, I am writing to confirm that you have been unable to identify any other suitable roles within Surf Life Saving Queensland for redeployment. Therefore your employment will be terminated on Monday 8 April 2024.[28]
"It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC's assessment of what "would have been reasonable in all [of] the circumstances".
"The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, 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.
(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job and the remuneration which it offered."
It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer's enterprise as an alternative to termination of employment. Of course, the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining.
Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy.[43]
Mr Kinneally also queried the redeployment process and was advised by Janet that he would need to meet with the hiring manager as per normal recruitment process to assess skills, qualifications and experience. Mr Kinneally did not ask or discuss the First Aid Trainer role at any point in time.[46]
Ms Nicholson stated "If there was anything you were interested in that we were currently recruiting for, obviously it would go straight through to an interview, we wouldn't expect you to reapply. It would just go straight through to an interview process, if there were any roles there that were appealing to you."[47]
I accept that there is no established requirement that an employer must conduct an internal process before seeking candidates from the external market, where the result is internal candidates compete against external candidates. Further, there is no requirement, mandated by s389(2), that internal candidates be given preferential treatment. However, in 'all the circumstances' of a particular matter, whether there was an internal process in advance of an external one is a relevant consideration in determining whether redeployment was reasonable.[48]
J. Wang appearing as Counsel for the Applicant instructed by Teddington Legal
[2] Helensburgh Coal Pty Ltd v Bartley and Anor [2024] FCAFC 45 at 55 ("Helensburgh Coal Pty Ltd").
[4] Ibid s389(1)(b)
[5] Ibid s389(2)(a)-(b).
[6] Helensburgh Coal Pty Ltd at [58].
[7] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32] ("Ulan Coal Mines Limited").
[8] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674.
[14] Respondent letter to Teddington Legal dated 19 April 2024 [2].
[15] Applicant Witness Statement Annexure JK-9.
[22] Applicant Witness Statement [82].
[23] Janet Nicholson Witness Statement [14].
[24] Applicant Witness Statement Annexure JK-14.
[26] Kerrie Barnes Witness Statement [15].
[28] Applicant Witness Statement Annexure JK-16.
[29] Ulan Coal Mines Limited [2010] FWAFB 3488 at para. 17, [(2010) 196 IR 32].
[31] Private Sector Clerks Award 2020, cl 38; Miscellaneous Award 2020 cl 27.
[32] Applicant Witness Statement Annexure JK-6.
[37] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd PR911257 [25]; affirmed by Deputy President Beaumont in Francombe v MClinicia Pty Ltd [2020] FWC 666 at [44].
[40] Helensburgh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54].
[43] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB [34].
[44] Applicant Witness Statement [50].
[45] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB [34].
[46] Jessica Baas Witness Statement Number 2 [2].
[47] Applicant Witness Statement [83].
[48] Susan Retter v WA Council on Addiction Inc T/A Cyrenian House [2024] FWC 1803 [77].
Printed by authority of the Commonwealth Government Printer
Joel Kinneally
Surf Life Saving Queensland [2024] FWC 2722
(1995) 60 IR 304
(2010) 196 IR 32
The Commission upheld the Respondent's jurisdictional objection that the dismissal was a genuine redundancy under s 389 of the Fair Work Act 2009 and dismissed the Applicant's unfair dismissal application (para [67]).