s 394 - Unfair dismissal

Application for an unfair dismissal remedy - dismissal a genuine redundancy - dismissal not unfair - application dismissed.

• [1] From Monday 11 September 2023 to Friday 20 September 2024, Monadelphous Engineering Associates Pty Ltd employed Mr Jonathan Kennard as a Senior Project Accountant. On Friday 20 September 2024, Mr Kennard's role was made redundant and his employment was terminated. Mr Kennard says his dismissal did not comply with the definition of genuine redundancy in s 389 of the Fair Work Act 2009 (Cth). Mr Kennard's position is that the real reason for his dismissal is that one or more former employers had shared "illegally obtained private information with Monadelphous"[1] arising from a multi-year "illegal investigation" into him.[2] He says his dismissal is unfair.

• [2] I conducted a hearing to hear the parties' evidence on Thursday 13 February 2025. Mr Kennard did not attend the hearing. I will cover the impact of his non-attendance in greater detail later in this decision. Mr Chris Gianatti of KHQ Lawyers represented Monadelphous. In support of its case, Monadelphous called Mr Ross Middenway (Operational Support Manager) and Ms Alysia Arif (Senior Human Resources Advisor) to give evidence.

• [3] Having considered the relevant evidence and submissions of the parties, I find that Mr Kennard's dismissal was a genuine redundancy, and his dismissal was therefore not unfair.

• [5] Mr Kennard filed material in accordance with the directions for this matter, but did not attend the hearing on Thursday 13 February 2024. In the lead up to the hearing, Mr Kennard requested that the matter be determined on the papers. My Chambers sent Mr Kennard the following email on Tuesday 11 February 2025:

We note your below email. It is unclear what your question about a deadline for the matter to be determined on the papers refers to.

In some circumstances, a Member of the Commission may determine a matter 'on the papers'. This is when a Member of the Commission determines a matter based on the materials filed, and typically without the need for a Hearing. You can find more information about unfair dismissal proceedings on the Commission's website here:

Practice note: Unfair dismissal proceedings | Fair Work Commission[3]

A matter will generally only be determined on the papers where both parties consent. If there is a contest of evidence and/or the parties seek to cross-examine the other side's witnesses, then a matter cannot be determined on the papers.

As there is contested evidence in this matter, the Hearing will proceed as listed. This is in person at the Fair Work Commission in Perth, Level 12, 111 St Georges Terrace, PERTH WA 6000 at 9:30am AWST (WA Time) on Thursday 13 February 2025.

We ask that the parties please arrive at least 10 minutes prior to the listed start time for the taking of appearances."

• [6] In response, Mr Kennard insisted that he was not contesting Monadelphous' evidence. My Chambers then sent the below email to the parties:

Chambers refers to your emails received this morning seeking for your application to be determined on the papers. The Commissioner appreciates that as you are unrepresented, you may not understand what it means to say that you do not contest any evidence.

From the materials that has been filed in this matter, it is clear the parties disagree as to what may or may not have occurred in the lead up to your dismissal. By way of example, the Commissioner refers to your response to Mr Middenway's and Ms Arif's witness statements (pages 71-73 of the Digital Court Book) where you detail your issues with their witness statements. This is what is meant by a contest of evidence. For you to say that you do not contest the evidence would mean that you accept the Respondent's evidence unchallenged.

The Hearing will proceed as listed. Please note that if you do not attend the Hearing the Commissioner will still proceed with hearing the evidence and submissions from the Respondent."

• [7] Mr Kennard emailed back, reiterating that the witness statements in this matter were contradictory. Further, he stated that, "I doubt I will attend the hearing. It seems pretty straight forward to me. I have listed everything in my "Decision on the papers" sent today".

• [8] On Wednesday 12 February 2025, my Chambers wrote to the parties and noted Mr Kennard's comments that he would not be attending the hearing. The email included the following: "As per our email dated Tuesday 11 February 2024, the hearing will proceed as listed even if Mr Kennard does not attend. Please note that a party's failure to attend the hearing may impact on the weight that can be attributed to their evidence".

• [9] Despite this, Mr Kennard did not attend the hearing. I have decided to treat all of Mr Kennard's material as submissions, with little to no evidentiary weight. It cannot be said that he had no warning or understanding of the significance of not attending the hearing. In reaching this view, I rely on the following:

(a) Mr Kennard was put on notice that if he did not attend, it could affect the weight given to his evidence.

(b) In an email sent to the parties on Wednesday 5 February 2025, in explaining my reasons for not granting an application Mr Kennard made under s 590 of the Act, I noted that the grounds that Mr Kennard relied upon were contentions with Monadelphous' filed evidence in the matter. I advised Mr Kennard that the appropriate way to pursue his contentions was at the hearing, through submissions and the cross-examination of witnesses.

(c) In an email sent to the parties on Thursday 6 February 2025, in response to Mr Kennard's allegations that Mr Middenway's witness statement had been tampered with and shouldn't be relied upon, my Chambers explained to Mr Kennard that "[a] witness statement has no weight until it is affirmed at the hearing. At the hearing, all witnesses will be asked to review and affirm that the contents of their witness statement are true and correct. Each party will then have the opportunity to cross-examine the other side's witnesses on their sworn evidence."

• [10] Mr Kennard had been informed of the purpose of the hearing and expressly told that for a witness statement to have weight, it needed to be affirmed and tested at a hearing. It was highlighted to him that his material and case strongly contradicted Monadelphous' evidence, and indeed, part of Mr Kennard's filed material involved documents identifying all his contentions with the witness evidence.[4] I also note that in an email sent on Monday 30 December 2024, my Chambers offered to refer Mr Kennard to the Workplace Advice Service organised by the Commission for him to receive legal advice. Mr Kennard did not take up this offer.

• [11] On Wednesday 12 February 2025, Mr Kennard sent an email to my Chambers stating, "I feel like privacy and safety is important so I will just remain anonymous. Can I request a pseudonym to be used in my case vs. family name? Reason being is surrounding cases and my family are directors of companies etc."

• [12] The same day, my Chambers informed the parties that I would hear submissions on Mr Kennard's request at the hearing. Mr Kennard did not attend the hearing to make further submissions. Monadelphous opposed Mr Kennard's request, but submitted it was ultimately a question for the Commission.

• [13] Though not explicitly identified, Mr Kennard's request appears to be an application under s 594(1) of the Act. The Full Bench in Santos WA Energy Ltd v Darren Whittaker[5] identified the relevant test is "one of satisfaction as to the desirability of a confidentiality order because of the confidential nature of the evidence in respect of which the order is sought or for any other reason. Unlike other jurisdictions or at common law, the test is not one of necessity".[6]

• [14] I understand that Mr Kennard seeks an order of confidentiality so that his name is redacted from this decision. Mr Kennard cites "surrounding cases" and his family members being directors of unnamed companies.

• [15] As Mr Kennard is the applicant in this matter, I find that a confidentiality order redacting Mr Kennard's name would go against open justice and the administration of justice. I do not find Mr Kennard has provided any compelling reason as to why a confidentiality order would be desirable beyond it being his preference. Mr Kennard did not provide any detail as to why redacting his name was important to any other ancillary litigation or why the circumstances of family members was relevant.

• [16] Accordingly, Mr Kennard's application for his name to be redacted from this decision is rejected.

• [17] There is no contest, and I find, that:

(a) Mr Kennard had completed the minimum employment period and earned below the high income threshold. He was protected from unfair dismissal under s 382 of the Act;

(b) Mr Kennard made his application within the time prescribed in s 394(2); and

(c) Monadelphous was not a small-business employer and so the Small Business Fair Dismissal Code did not apply.

• [18] Genuine redundancy is a complete defence to an unfair dismissal application.[7] I am required to determine whether Mr Kennard's dismissal meets the definition of genuine redundancy before I can consider whether he was unfairly dismissed.

• [19] Under section 389, I must consider whether Mr Kennard's job was redundant; whether Monadelphous complied with any applicable consultation requirements under a modern award or enterprise agreement; and whether it would have been reasonable to redeploy Mr Kennard into another role. The onus is on Monadelphous to prove these matters on the balance of probabilities.[8]

3.1 Section 389(1(a): Did Monadelphous no longer require Mr Kennard's role to be performed because of changes in its operational requirements?

• [20] It is well-accepted that a job or role is a collection of functions, duties and responsibilities.[9] Functions, duties and responsibilities may cease to be a part of a job or role through a reorganisation or restructure of duties. The question is then whether the employee has any duties left to perform or discharge.[10] Where there is no longer any function or duty for an employee to perform, their job becomes redundant; or, put another way, the employer no longer requires that employee's job to be performed by anyone due to changes in the enterprise's operational requirements.

• [21] This is true even if aspects of the employee's duties are still being performed by other employees.[11] In a situation or organisational restructure, the question is whether the previous job has survived the restructure, not whether the duties have survived in some form.[12]

• [22] Monadelphous relies on the evidence of Mr Middenway and Ms Arif. Mr Kennard took issue with the contents of the witness statements Monadelphous filed.[13] However, Mr Kennard did not attend the hearing to cross-examine Mr Middenway or Ms Arif.I note for completeness that it is not the Commission's role to run a party's case for them in their absence.

• [23] The Full Bench in Roy Morgan Research Ltd v K Baker[14] at [27] affirmed that an employer must provide evidence beyond "mere assertions [of a] desire to do things differently."

I find that Mr Middenway's and Ms Arif's evidence is comprehensive and cogent. I accept their evidence in its entirety. Their evidence regarding the events leading to Mr Kennard's dismissal can be summarised as follows.

• [24] Monadelphous is an Australian engineering group that operates in the resources, energy and infrastructure sector. There are two major operating divisions: the Engineering and Construction Division, and the Maintenance and Industrial Services Division.[15] Within each division, there are business units. Relevant to this matter is the Energy Business Unit within M&IS. The Energy Business Unit has carriage of major projects such as the Woodside Project, Shell Prelude Project, INPEX Project and Petrofac Project.[16]

• [25] Monadelphous employed Mr Kennard as a Senior Project Accountant on Monday 11 September 2023. Mr Kennard was assigned to onshore component of the Woodside Project. His duties included:[17]

(a) Reviewing claims for the various onshore components of the Woodside Project. This involved analysing and auditing the claims for expenses such as labour, equipment, materials etc;

(b) Compiling the main claim each month for the Karratha Gas Plant, the largest element of the Woodside contract;

(c) Managing and creating monthly financials reports;

(d) Cost control and financial reporting and analysis; and

• [26] Prior to Mr Kennard's dismissal, there was a second Senior Project Accountant in Mr Kennard's team, who performed accounting and reporting functions for the offshore component off the Woodside project.[18]

• [27] Mr Kennard also initially had a supervisory/leadership role for junior project accountants and administrators. This was removed over July and August 2024 following an unfavourable performance review in April 2024.

• [28] Prior to Mr Kennard's role as a Senior Project Accountant being made redundant, there was one Senior Commercial Lead, two Senior Project Accountants, one Project Accountant, one Senior Financial Administrator and one Assistant Accountant on the Woodside Project.[19]

• [29] Mr Middenway's evidence of the process that led to Mr Kennard's role being made redundant is as follows:[20]

(a) In around July/August 2024, Mr Middenway was informed that the Operations Support Manager of the Energy Business Unit, Mr Barnet, would be retiring at the end of 2024, and that Mr Middenway would be moving into this role. This led to discussions between Mr Middenway, Mr Barnet and the General Manager of the Energy Business Unit, Mr Macintyre, regarding succession planning and a review of the organisational structure of the M&IS Energy Operations Support Team. The purpose of this review was to identify what duties should be performed (and by which position) with a view to ensure efficient allocation of resources and employee experience.

(b) The organisational review identified that the M&IS Energy Support Operations Team would need four promotions to fill the gap when Mr Barnet retired. One of those promotions saw the Senior Commercial Lead of the INPEX Project move up to Mr Middenway's old role of Commercial Manager. This also involved the divisional accounting responsibilities for the Energy Business Unit being absorbed into the Commercial Manager role.

(c) The divisional accounting responsibilities up until that point had been carried out by Mr Tran in his role as Senior Commercial Lead. This meant that Mr Tran's capacity opened up so he could perform accounting duties for the Woodside Project.

(d) As part of the organisational review and restructure, a new Project Controls Department was established as an overarching reporting function for all projects across the Energy Business Unit. This increased capacity in the Operations Support Position and created extra support for reporting duties to various projects. This meant that there was greater capacity in leadership positions such as the Senior Commercial Lead position to carry out accounting duties.

• [30] In summary, Mr Barnet's retirement led to a series of movements where Mr Middenway moved up into Mr Barnet's position but retained a significant component of his old role. The former Senior Commercial Lead moved up into Mr Middenway's former position, but because Mr Middenway had retained responsibilities from the Senior Commercial Lead role, the new Senior Commercial Lead took on the divisional accounting function previously performed by Mr Tran. Mr Tran's new capacity to take on more responsibilities led to him absorbing a large portion of the duties of the Senior Project Accountant role for the Woodside Project.[21]

• [31] On or around Wednesday 11 September 2024, Mr Middenway, Mr Macintyre and Mr Barnet agreed that because of the restructure, the Woodside Project did not need two Senior Project Accountants.[22] The performance of the two Senior Project Accountants was reviewed. Mr Kennard fared less favourably than the other Senior Project Accountant.[23]

• [32] On Tuesday 17 September 2024, Mr Middenway and Ms Arif met with Mr Kennard. Mr Middenway informed Mr Kennard that as a result of the recent restructure, his position as Senior Project Accountant would be made redundant. Mr Middenway and Ms Arif explained the restructure and how it had led to the second role of Senior Project Accountant being deemed surplus, and that they were looking into redeployment opportunities for him.[24]

• [33] Mr Kennard's case is that his position was not genuinely made redundant for the following reasons:[25]
  • His position is still being performed by other employees.
  • His position still exists commercially; a true redundancy would be for the role to be absorbed among remaining employees.
  • His role could not be split.
  • Redundancy must involve the position no longer being required, not a reallocation of work to other employees at increased profitability.

• [34] Mr Kennard's submission that his position is still being performed by others seems to be a reference to either the sole Senior Project Accountant role still existing or Mr Tran absorbing Mr Kennard's role. The evidence is clear that there was a reduction from two to one Senior Project Accountant roles. The evidence is also clear that Mr Tran did absorb Mr Kennard's duties, on top of duties associated with the Senior Commercial Lead role. Neither of these factors speak to Monadelphous needing the second Senior Project Accountant role.

• [35] It follows that I do not agree with Mr Kennard's submission that his role was not absorbed by other employees; it was absorbed by Mr Tran. With regards to Mr Kennard's submission that redundancy cannot be a reallocation of work to other employees I refer to the principles at [22] of this decision. Mr Kennard's contention that his role could not be split is not supported by the evidence.

• [36] Mr Kennard submits that a new senior accountant had been hired six months within his team, which shows that the redundancy was not genuine.[26] Mr Middenway's evidence is that it is correct that around April 2024 a new Senior Project Accountant was engaged to perform similar role to Mr Kennard in respect of the onshore component of the Woodside Project. However, in around July 2024, this employee was reallocated to Monadelphous' Shell Prelude Project. Mr Middenway's evidence is that this reallocation was due to a resource requirement in that project team, and that it was not related to the wider organisational review that took place in September 2024.[27]

• [37] Mr Kennard also made the submission that it was in fact Mr Tran's position that was made redundant, and a decision was made to transfer his role as Senior Project Accountant to Mr Tran.[28] This is not borne out in Mr Middenway's evidence.

• [38] Based on Mr Middenway's and Ms Arif's evidence, I am satisfied that Monadelphous did not require the second Senior Project Accountant role to be performed due to the operational restructure that followed Mr Barnet's retirement.

3.2 Section 389(1(b): Was Monadelphous bound by a duty to consult?

• [39] Mr Kennard raised a breadth of issues with how the redundancy process was carried out. However, he did not make any submissions on whether he is covered by a Modern Award or enterprise agreement.

• [40] Monadelphous submits that Mr Kennard's employment was not covered by a Modern Award or enterprise agreement. Having considered the nature of Monadelphous' enterprise and the role that Mr Kennard performed; I am satisfied that Mr Kennard's employment with Monadelphous was not covered by a Modern Award. I am also satisfied that Mr Kennard was not covered by an enterprise agreement. There was therefore no consultation obligation on Monadelphous regarding Mr Kennard's redundancy.

3.3 Section 389(2): Reasonable redeployment

• [41] Monadelphous submits that it took steps to try and redeploy Mr Kennard. Monadelphous relies on the following evidence from Ms Arif and Mr Middenway:

• (a) On Wednesday 11 September 2024, Ms Arif emailed the Monadelphous General HR services email address to enquire about potential redeployment opportunities for Mr Kennard. This email outlined Mr Kennard's tenure, position and department.[29]

• (b) Over Thursday 12 September to Tuesday 17 September, Ms Arif received correspondence from the Human Resources Advisor supporting the EC Division that the EC Division was interested in Mr Kennard. However, it was later confirmed that there was no vacancy for Mr Kennard.[30]

(c) On Tuesday 17 September 2024, Ms Arif emailed the Monadelphous Recruitment Manager and asked him to contact Mr Middenway if there were any vacancies that matched Mr Kennard's experience and skillset.

• (d) On Wednesday 18 September 2024, Ms Arif sent a follow up email to the Monadelphous General HR services email address asking if there were any vacancies in any Monadelphous business unit that might be suitable for Mr Kennard.[31] Ms Arif also emailed the Talent Acquisition Specialist in the EC Division about Mr Kennard being redeployed within the EC Division.[32]

• (e) On Friday 20 September 2024, Mr Middenway called and spoke to the Commercial Manager of the EC Division regarding a potential redeployment opportunity as a Senior Project Accountant in the EC Division.[33]

• [42] On Friday 20 September 2024, Mr Middenway texted Mr Kennard that the EC Division wanted to chat to him about a potential redeployment opportunity in the EC Division.[34] Mr Kennard texted in reply to Mr Middenway, "Hi Ross, good thanks. All good, if it's okay with you Friday is my termination date/last day with Monos. If I'm not obligated contractually I rather just be made redundant and on leave from here".[35]

• [43] Mr Kennard submits that during the meeting on Tuesday 17 September 2024, neither Mr Middenway nor Ms Arif mentioned remobilisation until he mentioned bringing an application in the Commission.[36] Mr Kennard did not explain how this should impact on my findings regarding s 389(2).

• [44] I accept Mr Middenway's and Ms Arif's evidence of the steps they took to source redeployment opportunities for Mr Kennard. Given Mr Kennard's rejection of a potential redeployment opportunity, I also accept Monadelphous' submission that it was not reasonable or available for Mr Kennard to be redeployed within Monadelphous or an associated entity.

• [45] Having considered the evidence of Mr Middenway and Ms Arif and the submissions of Mr Kennard, I find that there were operational changes that meant Monadelphous no longer required Mr Kennard's role to be performed by anyone. I find that there were no consultation requirements that Monadelphous was obligated to comply with, and that it was not reasonable in all the circumstances for Mr Kennard to be redeployed. I appreciate that Mr Kennard was aggrieved by what happened and has strong views that an external party had conspired with Monadelphous to terminate his employment. Though it has no bearing on my findings regarding s 389, I note for completeness that Mr Middenway's and Ms Arif's unchallenged evidence is that they were not aware of any investigation or privacy issues alleged by Mr Kennard.

• [46] For the reasons set out above, Mr Kennard's dismissal was a genuine redundancy and was not unfairly dismissed. Mr Kennard's application is dismissed.

[1] Digital Court Book Volume 1 (DCB1), 10; 22.

[4] Digital Court Book Volume 2 (DCB2), 'Issues with Witness Statements Round 1', 'Issues with Witness Statements Round 2', 10-20.

[5] [2024] FWCFB 231.

[7] Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 [26].

[8] See: Kieselbach v Amity Group Pty Ltd PR973864 (AIRC, Hamilton DP, 9 October 2006) [34]; Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125 [23]-[29].

[9] Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 308; cited in Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 [17].

[11] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 404-405.

[12] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 [27].

[14] [2013] FWCFB 8936.

[15] DCB1 (n 1), First Witness Statement of Ross Middenway, 108[10].

[21] Ibid, First Witness Statement of Ross Middenway, 114 [29].

[22] Ibid, First Witness Statement of Alysia Arif, 167 [21].

[24] Ibid, First Witness Statement of Ross Middenway, 116 [38]-[39]; First Witness Statement of Alysia Arif, 169 [32]-[34].

[27] Ibid, Second Witness Statement of Ross Middenway, 258 [9].

[28] Ibid, Applicant's Submissions In Reply 22 January 2024, 72.

[29] Ibid, First Witness Statement of Alysia Arif, 168 [25].

[33] Ibid, First Witness Statement of Ross Middenway, [45].

[36]Ibid, Applicant's Outline of Submissions 22 November 2024, 23.

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