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[2026] FWC 723
General information, not legal advice.
Fair Work Commission
2026-03-05
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - jurisdictional objections - genuine redundancy and Small Business Fair Dismissal Code - genuine redundancy objection upheld - application dismissed
[1] Mr Joel Sweeney (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), stating that he was unfairly dismissed from his employment with Drew Stephenson Pty Ltd (the Respondent) on 8 August 2025.
[2] The matter was listed for a hearing on 11 December 2025. The Applicant and Respondent were self-represented. The Respondent was represented by its director, Mr Rudi Hopfner.
[3] Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant was made genuinely redundant and, in the alternative, that the Small Business Fair Dismissal Code was complied with. The jurisdictional objections will be considered before determining the merits of the matter.
[6] In June of 2025, four of the Respondent's employees resigned. This included three fee earners.
[7] A director of the Respondent at the time also resigned. She had also been a tax agent, public practice holder, licence holder, practice manager, and signatory on the bank account. Once the former director left, the business no longer had a public practice licence and no longer had someone capable of managing the practice.
[8] As a result of the director's resignation, Mr Hopfner, who had not been working in the business for two years, went to Hervey Bay to assess the situation. The Respondent lost 25 percent of their turnover after existing clients appointed a new auditor.
[11] On 16 July 2025, the Applicant's colleague sent an email to Mr Hopfner raising issues with the working environment. These issues related to clients being abusive and aggressive. The clients reportedly wanted to know who was dealing with their work and why it was taking so long.
[12] On 8 August 2025, the Applicant's employment was terminated. The Applicant was terminated verbally, at approximately 8am. The Applicant's employment was terminated at the same time as his colleague, who had also been a junior accountant.
[13] The Applicant was emailed a termination letter shortly after he was verbally informed of the termination. This letter was incorrectly addressed to the Applicant's colleague, instead of the Applicant. It was however, emailed directly to the Applicant.
[14] The Respondent alleges that after the Applicant's employment was terminated, the Applicant "walked out" and did not work out his notice period. The Respondent stated that it would not process the final payments until the company property, passwords and client data had been returned. The Applicant alleges that the true reason for the termination is that he had taken sick leave on 7 August 2025.
Is there a genuine redundancy under s.389(1) of the Act?
[15] Under s.396 of the Act, I am required to consider whether the redundancy was a genuine redundancy before considering the merits of the application.
[16] The requirements of genuine redundancy prescribed under s.389 of the Act are:
[17] In Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29 ('Helensburgh'), the majority of the High Court held as follows:
[30] Section 389(1) of the FW Act defines "genuine redundancy". Unless that provision is satisfied, s 389(2) is not reached. Although there was no dispute that s 389(1)(a) and (b) was satisfied in this case, it is necessary to say something further about s 389(1)(a). It is a factual inquiry about what happened. The first part of s 389(1)(a) turns on the existence of a decision in fact made by an employer. It is the employer's decision to no longer require a person's job to be performed by anyone. The provision does not look to whether the employee's position, in terms of job title, was no longer required, but whether their "job", in the sense of the nature of the work they performed, was no longer required. Section 389(1) refers to a decision by the employer and no one else.
[31] The second part of s 389(1)(a) provides that the job must have ceased to be needed "because of changes in the operational requirements of the employer's enterprise". An employer determines what those changes might be or if they are needed. There is no reasonableness inquiry in s 389(1). Therefore, the fact that the employer, due to changes in operational requirements, no longer required the work to be performed by anyone need not have been reasonable.
[18] In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 at [17], the Full Bench considered redundancy where the job as a collection of "functions, duties and responsibilities" becomes no longer required.
"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.
[19] The Applicant argues that even though he was made redundant, the business remained "operational". He points to the website and Facebook remaining active. The Applicant also noted that the company had not been liquidated.
[20] The Applicant's argument proceeds on a misunderstanding of what is required to prove whether the Applicant's job was no longer required to be performed by anyone due to operational requirements. The Respondent is not required to prove that they are insolvent or no longer trading in order to justify making a role redundant. The Act does not set such a high bar. As was noted by the High Court, s.389(1) is not subject to a reasonableness enquiry. All that is required is that changes in operational requirements are established.
[21] In any event, the Applicant's "evidence" to show the Respondent was still trading is not probative and, in my view, some of the evidence was obtained unethically.
[22] The Applicant's mother, Ms Sheree Sweeney, undertook enquiries following the Applicant's termination. While I understand Ms Sweeney's desire to help her son, her evidence is not probative and additionally, was obtained through what I consider unethical means. She went well beyond what is appropriate.
[24] Setting aside the issues with the photos taken by Ms Sweeney, the evidence which concerns me are covertly recorded phone calls between Ms Sweeney and reception staff of an associated entity of the Respondent. Ms Sweeney also visited the Respondent's office in person on one occasion.
[26] On 3 December 2025, Ms Sweeney called again and covertly recorded the phone call. Ms Sweeney spoke to a receptionist. She asked if she was speaking to someone from Drew Stephenson and was told it was a parent company. Ms Sweeney asked to speak to the previous director of the Respondent. The receptionist put her on hold and then advised Ms Sweeney that the person she was looking for was a previous employee. Ms Sweeney was asked what she was looking to do. Ms Sweeney lied and said she wanted to get her tax done. The receptionist said that there was another employee in Hervey Bay who may be able to assist. The call to the Hervey Bay office went to voicemail.
[27] Ms Sweeney called again on 3 December 2025 and spoke to a different receptionist. Ms Sweeney informed the receptionist that the calls were still being diverted. The receptionist advised Ms Sweeney that she had sent an email to the Respondent's office alerting them of her queries.
[28] Ms Sweeney's evidence is not helpful to the Applicant's case. The most the evidence amounts to is that the calls were diverted, she was told the Respondent was not taking new clients, and Ms Sweeney was told she would get a call back from someone in Hervey Bay and never did.
[29] Section 45(2) of the Invasion of Privacy Act 1971 (Qld) provides an exception for criminal liability for publication of a recording of a private conversation where the publication is made in the course of legal proceedings. "Legal proceedings" includes "proceedings before any court, tribunal or person (including any inquiry, examination or arbitration) in which evidence is or may be given" (s.45(3)(c) Invasion of Privacy Act 1971 (Qld)).
[30] My concern is not with the legality of Ms Sweeney producing the call recordings as evidence in these proceedings. It is not a crime to publish the recordings under the Invasion of Privacy Act 1971 (Qld). However, any probative value that the recordings did have, which is very little, is severely undermined in my view, by the false pretences of the conversations Ms Sweeney recorded. Ms Sweeney lied and said she wanted her tax done, pretending to be a prospective client. She then proceeded to try and extract evidence from the receptionists, one of whom is apparently only eighteen years old, to use in a legal proceeding. That places those employees in a position where, without their consent or knowledge, their private conversations have been produced as evidence in a case against a related entity of their employer. Apparently, the Applicant sees no issue with that. I take issue with it, and I place no weight on any of the call recordings.
[31] The Applicant described his tasks, prior to the termination of his employment, as follows in the hearing:
I was also taking on reception duties in order to cover for all of the reception staff that left prior to that. So I was actually walking double duty. I was doing junior accounting roles, providing individual tax returns and getting them ready for review, and I was also doing reception duties, taking on staff appointments and setting appointments and dealing with other complaints as well.
[33] I find that the Respondent no longer required the Applicant's job to be performed by anyone due to changes in operational requirements.
[34] The Respondent submits that no Award covers the Applicant. The Applicant submits that the Junior Accountant role was covered by the Clerks - Private Sector Award 2020 (the Clerks Award).
[35] The Applicant's evidence in this regard is somewhat elusive. He says: "the Applicant's duties included reception, filing, accounts, billing, and client communication - all squarely within the Clerks Award." It is not sufficient for the Applicant to say he is covered by the Clerks Award because his duties included administrative or clerical duties - most office-based roles include those duties. Award coverage is not determined by looking selectively at some of the duties performed.
[36] The coverage clause of the Clerks Award states:
(a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and
(b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a).
[37] The evidence is not sufficient for me to conclude that the Applicant was "wholly or principally" engaged in clerical work. The purpose for which the Applicant was employed, as indicated by his employment contract, was to perform duties consistent with that of a Junior Accountant. I am not persuaded that the Applicant was "wholly or principally" engaged to undertake of clerical work. Clerical work is not receptionist work, though there may be overlap. Even then, the Applicant suggested that receptionist duties were only part of his role, rather than being principally his role, and seemingly the Applicant took on more of those duties because other staff had resigned. Clerk, as defined in the Macquarie Dictionary means "someone employed in an office, shop, etc., to keep records or accounts, attend to correspondence, etc". Where the definition refers to keeping accounts, this is in a general sense, rather than the financial work of an accountant. The Applicant refers to "accounts clerks" being usually covered by the Clerks Award. In my view, the role of an accounts clerk is different to that of a junior accountant in an accounting firm.
[38] On the evidence before me, I am not persuaded that the Applicant is covered by the Clerks Award. On balance, I find that there is no consultation clause which applies to the Applicant.
[39] I note the Applicant asserts that there are minimum consultation requirements under the National Employment Standards (NES). That is not correct. Consultation requirements come from the Award or the Enterprise Agreement the employee is covered by.
[40] In Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29, the majority of the High Court held as follows:
[32] Section 389(2) then provides a protection for the dismissed employee and provides that protection by posing a "counter-factual". It provides that notwithstanding that the employer no longer required the dismissed employee's job, namely their work or their duties, to be performed by anyone because of changes in the operational requirements of the employer's enterprise, the person's dismissal was nonetheless 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" (emphasis added).
[33] Unlike s 389(1), s 389(2) is qualified by a requirement of reasonableness. 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". The language is broad.
[34] Nonetheless, the range of the inquiry permitted by s 389(2) is limited in the sense that the inquiry is in respect of the employer's (or an associated entity's) "enterprise" and that the redeployment of the person must have been reasonable "in all the circumstances"...
[35] First, the employer's "enterprise" in s 389(2) is its "business, activity, project or undertaking".10 This provides the scope of the inquiry under s 389(2). It is not appropriate for the FWC to disregard the very nature of the employer's enterprise. It cannot, for example, change the nature of the business, activity, project or undertaking of the employer's enterprise. The nature of the employer's "enterprise", however, is not defined by reference to how the employer uses its workforce to operate its enterprise, or why it does so in that manner.11 Such circumstances are not the "business, activity, project or undertaking".
[36] Second, the inquiry is whether it would have been reasonable in all the circumstances for the person to be "redeployed" within the employer's enterprise. "Redeployed" does not require there to be a vacant position. The word "redeploy" does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment. Indeed, the ordinary meaning of "redeploy" - "to rearrange, reorganise, or transfer"12 - envisages some reorganisation or rearrangement. In other words, it does not mean that it would only have been reasonable to redeploy the person if there was a vacant position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not refer to a "job". The text of s 389(2) therefore does not, on its face, assume that a job is readily available. Rather, "redeployed" looks to whether there was work, or a demand for work, within the employer's enterprise or an associated entity's enterprise that could have been performed by the otherwise redundant employee
[37] Third, the inquiry is whether redeployment "would have been reasonable". The words "would have been" direct the FWC to consider a hypothetical situation. A hypothetical is inherently a consideration of a situation changed from what it was. The use of the past tense directs attention to the situation at the time of the dismissal. The hypothetical inquiry under s 389(2) therefore asks what, at the time of the dismissal, could have been done to redeploy the employee within the employer's enterprise.13 In other words, would it, at the time of the dismissal, have been reasonable to redeploy the employee to perform other work within the employer's enterprise.
[38] Fourth, the inquiry is a reasonableness inquiry. Reasonableness is an objective question to be determined by the FWC. The inquiry does not look to reasonableness only from the point of view of the employer, or only from the point of view of the employee (although they are relevant). It is an inquiry as to reasonableness in the context of the employer's enterprise, with regard to the nature of that enterprise.
[39] Fifth, the inquiry is whether redeployment would have been reasonable in "all the circumstances". The words "all the circumstances" are unmistakably broad; they point against the existence of binding rules concerning the application of s 389(2) in all cases irrespective of the circumstances of each particular case. If there were circumstances that were intended to inform whether, in any given case, redeployment would have been reasonable, the legislature would not have used the qualifying phrase "in all the circumstances".
[40] "[A]ll the circumstances" can include the attributes of the otherwise redundant employee, such as their skill set, experience, training and competencies. "[A]ll the circumstances" can also include those attributes of the employer's enterprise that concern its workforce, such as: its policies, including appetite for risk; plans; processes; procedures; business choices, such as a decision to terminate a contract in the future and a decision to persist with using contractors; decisions regarding the nature of its workforce, such as whether it has a blended workforce of both employees and contractors; contract terms, such as whether they are "as needs" contracts and whether the contractors are on daily work orders or on some long-term fixed commitment; practical concerns, such as whether redeployment would require the employee to undergo further training; and anticipated changes, such as another employee going on parental leave or retiring, a contract expiring, or a position being performed by a contractor while waiting for an employee to be hired. These are "circumstances" of how an employer uses its workforce to operate its enterprise, or why it does so in that manner, which can, depending on the circumstances of the case, bear on whether it would have been reasonable to redeploy an employee within the enterprise. These circumstances are not directed at the size, scope or nature of the enterprise, which are fixed at the date of dismissal.
[41] When considering whether it would have been reasonable to redeploy the Applicant within the employer's enterprise, the Commission may consider any associated entities of the Respondent.
[42] The Respondent's associated entities include accounting firms across Queensland. Mr Hopfner gave evidence that no one was able to supervise the applicant as a Junior Accountant in the offices in Beerwah or Gympie (which are also quite some distance from Hervey Bay). The Respondent said that there was nowhere to put the Applicant even if the work was available.
[43] The Applicant noted that there was a receptionist role advertised for an associated entity, Entegra, in July 2025, prior to his employment being terminated. That role was based in Hervey Bay.
[44] When I asked Mr Hopfner in the hearing if any redeployment opportunities existed on 8 August 2025 he said, "No, because I needed people to help me clean the mess up". Mr Hopfner gave evidence that subsequent to the Applicant's employment being terminated, a professional receptionist was hired to assist who had, according to him, the appropriate demeanour and experience for dealing with objections from clients.
[45] I understand the Respondent's reticence to redeploy the Applicant into a client-facing receptionist role when the Applicant had taken leave with stress from dealing with clients. On 16 July 2025, the Applicant's colleague sent an email to Mr Hopfner, on behalf of both himself and the Applicant. That email stated:
I would like to bring to your attention that Joel and I are facing very aggressive clients day to day, and the abuse we are receiving is excessive, unwanted and very concerning. At this stage we feel very uncomfortable opening the office to the public as we are facing the wrath and verbal abuse of many upset clients and we are concerned for our own safety.
The clients frustration stems from us not being able to advise them who is dealing with their work and the lack of being able to provide an approximate timeline for completion. Many of these clients have had their work with us for quite sometime and this work has not been completed as yet.
[46] I am satisfied it was not reasonable in all circumstances to redeploy the applicant. As confirmed by the High Court in Helensburgh, the Commission may have regard to attributes of the employee and attributes of the employer concerning its workforce. Due to the Applicant's qualifications, he cannot perform accounting work unsupervised. He could not be supervised at Hervey Bay at the time of the redundancy as there was no one with a practising licence there. The Applicant had, three weeks before the termination of his employment, been included in an email stating that he and his colleague felt unsafe at work because of interactions with clients. The Applicant had also taken leave because of stress. Against that context, it would not have been reasonable in all circumstances for the Applicant to be redeployed into a receptionist, client-facing role.
[47] I find that the dismissal was a genuine redundancy. Accordingly, the termination of the Applicant's employment was not an unfair dismissal. It is unnecessary for me to consider the second objection regarding the Small Business Fair Dismissal Code.
[48] I note there is a separate matter before the Fair Work Ombudsman regarding the Applicant's entitlements. The Respondent argues that the business is currently insolvent, but has not been wound up. I cannot order payment of the Applicant's entitlements, as he has requested. I observe, however, that it is illegal for the Respondent to withhold any national employment standards (NES) entitlements owing to the Applicant because of an alleged breach of contract. The minimum NES entitlements have the force of statute and override the terms of the individual employment contract, where they are contrary. I observe that if the Applicant's entitlements are not paid, the Applicant may bring an enforcement claim in the appropriate jurisdiction and may make a claim for penalties.
[49] The jurisdictional objection is upheld and the application is dismissed. I Order accordingly.
[1] Annexure RH-T-J To R Hopfner Statement
[3] Annexures RH-A, RH-B, RH-C and RH-D to R Hopfner Statement
[4] Annexures RH-R to R Hopfner Statement
[5] Annexure RH-O, RH-P and RH-Q to R Hopfner Statement
[7] Ibid s389(1)(b)
[8] Ibid s389(2)(a)-(b).
[9] Annexure SS-1, SS-2 to Sheree Sweeney Statement
[10] See, for example, SS-3 taken outside the back of the building
[12] Applicant "Rebuttal Outline to R. Hopfner's Statement"
Printed by authority of the Commonwealth Government Printer
Joel Sweeney
Drew Stephenson Pty Ltd [2026] FWC 723
(1995) 60 IR 304