• [29] The Applicant was paid 4 weeks' notice in lieu, 8 weeks' of redundancy payment and an ex gratia payment of 1 week, as well as other statutory entitlements.[20]

• [30] The Applicant lodged an application with the Commission on 20 December 2024.

• [31] I make note that I made it clear to the Applicant that matter of minority oppression is not one which the Fair Work Commission can decide on.

• [32] The Applicant submitted a transcript of a covertly recorded without prejudice conversation on 11 December 2024 in evidence. The key problem with the transcript is not that it is covertly recorded, although that is a breach of trust and fidelity, but with the fact that the conversation was expressly stated to be without prejudice and off the record.

• [33] Without prejudice conversations exist for the purpose of allowing parties to try and achieve a settlement. This is especially important in the Commission, where the Act promotes a swift resolution of disputes. It is important to protect parties' abilities to engage in frank, robust and open discussions, without fear that everything they say will be brought up on the record. This is a protection for both employees and employers. I am concerned that granting the Applicant's request will set a precedent for parties to covertly record without prejudice conversations, or conciliation meetings, and then seek to adduce that evidence in the hearing.

• [34] The cloak of "without prejudice" cannot be used to shield illegal behaviour, but the Applicant's mere allegations of bullying and intimidation by the Respondent do not rise to the requisite level of behaviour where the without prejudice protection should be lifted.

• [35] The Applicant's perception of feeling bullied during discussions does not substantiate a finding that he was actually bullied. Given the familial relationship between the parties, it is unsurprising that there is a feeling of resentment and mistreatment on both sides.

• [36] In this case, the Applicant appears to argue that he was forced to sell his shares and that this behaviour should allow the transcript to be admissible. To be clear, an offer by the Respondent to buy shares for $350,000, does not, in my view, amount to blackmail or illegal intimidation. It may be illegal intimidation if the Applicant was asked to sell for nothing, or a nominal sum, but he was not. Minority oppression, as I made clear to the Applicant, is a matter for a court of competent jurisdiction to determine.

• [37] The Applicant has only pointed to two authorities on the without prejudice point.[21] Neither of these authorities are examples of where without prejudice privilege was waived. The Applicant claims that because other jurisdictions, which are strictly bound by the rules of evidence, have made decisions admitting conversations which were made on a without prejudice basis, then the Commission should do so too. What the Applicant fails to understand is that these decisions are always fact dependent. On the facts before me, there is no illegal conduct which warrants waiving the protections, noting the importance of settlement discussions in jurisdictions such as the Commission.

• [38] I am also concerned that the Applicant is levelling serious accusations of dishonesty against the Respondent's solicitor personally. Those kinds of accusations are not justified and are inappropriate for the Applicant to make lightly.

• [39] Further, as the Respondent's representative noted in the hearing, the primary relevance for which the Applicant sought to rely on the transcript is to discredit Mr Pikos' evidence and prove he lied about the reasons for Applicant's redundancy.

• [40] It was available for the Applicant to put it to Mr Pikos during cross-examination that the true reason for the redundancy was because Mr Pikos wanted the Applicant to sell his minority shareholding. It was open to the Applicant to put that to Mr Pikos and the Applicant did not do so.

• [41] In deciding not to admit the transcript during the hearing, I provided two reasons on the record. Firstly, while the Commission is not strictly bound by the rules of evidence, including the best evidence rule, there are concerns about the provenance of the transcript. Even if it were admissible, it would be given less weight. The transcript is a purported replication of a covertly recorded conversation between the parties. There are concerns regarding whether that replication of the conversation is accurate, which could cause delay in requiring adjourning the hearing for the Respondent to review the original recording, which I understand is approximately 40 minutes.

• [42] Secondly, the Applicant can address the issue of Mr Pikos' credit through cross-examination. I noted that the Applicant had the opportunity to contradict Mr Pikos in cross-examination. The Applicant said that requiring him to cross-examine Mr Pikos on this point was "convoluted" as it is, in his mind, self-evident on the transcript that Mr Pikos is lying. I do not doubt that the Applicant believes it to be self-evident, but I highly doubt that the Respondent would share the same view. Cross-examination is an important opportunity for the Applicant to test the Respondent's evidence and the Applicant did not take full advantage of this opportunity.

• [43] During closing submissions, the Applicant again brought up the transcript, stating that he believes it would have proven his case.

• [44] The Applicant also introduced a previously unknown grievance with the Commission during his closing submissions. He stated that he had four people willing to provide witness statements but that they feared financial retribution and would not do so without being subpoenaed. When asked why the Applicant did not call these witnesses, he stated again that they needed subpoenaed and that he believed the Commission would do this. The Commission cannot order witnesses to attend if the Commission does not know those witnesses exist. The Applicant made previous requests to Chambers to for documents to be produced. He never requested an order for persons to attend the hearing. Therefore, I reject the Applicant's claims in this regard.

Is there a genuine redundancy under s.389(1) of the Act?

• [45] In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, the Full Court of the Federal Court made it clear that if the factors of genuine redundancy are established, there is no unfair dismissal even if the redundancy has aspects of being harsh, unjust and unreasonable.

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"[22]

• [46] Therefore, I consider whether the requirements of genuine redundancy are met regardless of whether it may be qualified as harsh, unjust or unreasonable. The requirements of genuine redundancy prescribed under s.389 of the Act are:

• 1. The role was no longer required to be performed by anyone because of operational requirements of the employer's enterprise.[23]
• 2. Consultation if prescribed under Enterprise Agreement or applicable Award.[24]
• 3. Offer of redeployment if it was reasonable in all the circumstances.[25]

1. Did the Applicant's employer no longer require the Applicant's job to be performed by anyone because of operational requirements of the employer's enterprise?

• [47] The Commission is not required to undertake an inquiry into the reasonableness of the changes in operational requirements. It just needs to be established.

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.[26]

• [48] "Operational requirements" is a broad term which encompasses a broad range of factors which include factors such as the current performance of the business, the state of the market in which the business operates, steps to improve efficiency with new processes/equipment/skills, arranging labour to be used more productively or the application of good management to the business.

• [49] 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.

• [50] If there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee's duties are still being performed by other employees.[27] The consideration is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[28]

• [51] The Applicant appears to have a different idea of what his role as Head of Operations encompassed to the Respondent. In addition to office management, IT support and induction of new staff members, which the Respondent agrees were part of his duties, the Applicant says in the Head of Operations role he had "[c]ontrol of the company's creative direction."

• [52] The Applicant says that the meetings on 24 October 2024 and 2 December 2024 were to discuss a promotion to the role of Creative Director and the sale of his shares in the company. He further stated that it was a change of title only with some increased responsibilities.

• [53] The Applicant argues that the Redundancy was not genuine as it was a response to his unwillingness to sell his 5% equity. He claims that at the without prejudice meeting he was threatened with termination if he did not agree to the sale of his equity. The Applicant did not agree to the proposition being put by the Respondent and formally rejected it the following day. The Applicant was formally notified of his redundancy on the 13 December 2024. The Applicant argues that there was no consultation or prior discussions regarding redundancy.

• [54] The Applicant relied on the balance sheet provided to him the meeting of 2 December 2024 as evidence that the company had a healthy balance sheet. He contests the legitimacy of the operational review conducted by the Respondent. The Applicant argues that the company was doing well, and they were hiring leasing agents. This indicated to the Applicant that business was going well, as what flows from the leasing agents would mean more work for operations. The Applicant noted that the company had plans for expansion and argues that he was critical to the expansion project.

• [55] Conversely, the Respondent gave evidence that after receiving detailed financial reporting, the Directors believed that the Respondent's office and administration costs were excessively high and, in combination with a slowdown in the commercial leasing sector, the Respondent decided to conduct an operational review. The Respondent led evidence that the Applicant's role had been significantly diminished over time, with the outsourcing of IT and the employment of an office manager and, as such, that the position held by the Applicant was no longer required. Further, given that business activity had slowed and did not look like returning, the company had pressure to reduce costs.

• [56] The Respondent gave evidence that following the Applicant's position being made redundant, nine other roles had also been determined to be no longer required, including:

• [57] The Respondent noted that in total, there has been a reduction in its workforce by approximately 21%. The roles which were made redundant were ones which the Respondent felt created costs for the business, rather than generating revenue.[29] The evidence of other roles being made redundant after the Applicant's redundancy is not determinative of the question of whether changes in operational requirements existed necessitating making the Applicant's job redundant. However, it does corroborate the Respondent's submission that they were engaged in a restructuring process to lower the cost base of the organisation.

• [58] It is a trite statement that the role of the Commission is not to stand in the shoes of the employer and determine which business decisions it ought to have made. Even if the Respondent was performing well, as the Applicant indicated based on the balance sheet, that does not prevent the Respondent from deciding that the business could be run more efficiently. Further, the evidence of Mr Pikos in relation to the company's understanding of market conditions and the need for downsizing was generally more persuasive than the Applicant's evidence that the restructure was simply a pretence.[30] Mr Pikos said that the commercial leasing industry was experiencing downturn. Further, I would accept that generally an organisation does not reduce its workforce by 21% as a pretence for terminating one person.

• [59] As to the Applicant's role in particular, under cross-examination the Applicant accepted, to an extent, the proposition that once an external IT consultant had been engaged, and once the Office manager had been hired, his duties to perform IT support and duties involving office administration had been diminished.[31]

• [60] I find that the Respondent has established that the role of Head of Operations was no longer required due to changes in operational requirements in the Respondent's business.

• [61] I find that the Creative Director role offered was a new role, rather than a new title for the Applicant. The reasons for finding this are, firstly, that the role came with a substantial pay increase, that is, $40,000 more per annum which would generally suggest a change in responsibilities. Further, the evidence of the Applicant is that he believes he was informed of the restructuring during the meeting on 2 December 2024 and was cognisant of the business's growth prior to that. Finally, the evidence of the Applicant is he understood that the role would have a greater emphasis on creative aspects, such as branding and marketing, which would suggest that while the role incorporated some similar duties, it was in fact a new role, noting his duties of providing IT support and office administration were no longer required. I note the Applicant did not sign any documents accepting this role, as the offer was subject to the sale of his shares, which he did not agree with.

1. Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?

• [62] The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.

• [63] The Applicant did not identify any award or agreement that applied to him and thus there was no formal requirement to consult. The Respondent's contention is that the meetings on 2 December 2024 and 11 December 2024 were meetings to consult with the Applicant. Whether that is true, or whether the meetings were primarily to discuss the sale of shares is not relevant in circumstances where there is no consultation requirement.

1. Was it reasonable in all the circumstances for the person to be redeployed within, (a) the employer's enterprise; or (b) the enterprise of an associated entity of the employer?

• [64] In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at 66, the Full Court of the Federal Court of Australia notes:

"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".

• [65] In Helensburgh Coal Pty Ltd v Bartley [2021] FWCFB 2871 at [8], the Full Bench reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt Arthur Coal Pty Ltd [2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows:

"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."

• [66] The Full Bench stated that the work to which an employee might be redeployed must, ultimately, be work over which the employer has control.[32]

• [67] The Respondent contends that following the review in October 2024 meetings and discussions were held with the Applicant. The Applicant was offered the new Creative Director role on 24 October 2024 and 2 December 2024. The Applicant did not accept the offer. Subsequently, the Respondent determined that it would not be creating the Creative Director role. Mr Pikos gave evidence that the primary reason for devising this new position was that as the Applicant is his brother in law, he was trying to find a way for him to stay at the company. After the Applicant did not accept the offer after the deadline had been extended, the Respondent determined that it should not proceed with the new role as it went contrary to its cost saving exercise.

• [68] The Applicant has a degree in architectural design. I asked Mr Pikos in the hearing if the Applicant could have been redeployed into one of the positions which had not been made redundant, such as in the role of leasing agent. Mr Pikos said the Applicant could not, as he has a different skill-base. Mr Pikos also gave evidence that the Applicant had never expressed interest in working as a leasing agent and that, at the time, they were looking for leasing agent roles in Sydney rather than Brisbane.[33] Mr Pikos testified that there no other roles available at the time for the Applicant to be redeployed to, given the "forward pipeline of work" was not optimistic, and there was a general downturn in the commercial leasing industry.

• [69] I note that the Applicant did not propose alternative suggestions for roles which he could be reasonably redeployed into.

• [70] I find that it was not reasonable in the circumstances for the Applicant to be redeployed within the employer's enterprise.

• [71] I am sympathetic to the Applicant's situation. There is obviously tension between him and the directors of the Respondent, which places the Applicant in a difficult position as Mr Pikos' brother-in-law.

• [72] However, I am satisfied that the dismissal of the Applicant was a genuine redundancy under s.389 of the Act and the Applicant is not eligible to seek a remedy for unfair dismissal. The Applicant's claims of shareholder minority oppression are matters which need to be dealt with in the appropriate jurisdiction.

• [73] The application is dismissed. I Order accordingly.

B Kidston of Counsel for the Respondent, instructed by Gadens

[3] M Pikos Witness Statement [14]-[15].

[12] Transcript PN241; Statement of M Pikos [26]-[27]

[15] Annexure A to Applicant Submissions

[20] MPP-06 to M Pikos Witness Statement

[21] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2024] WASC 132 and Pigozzo v Mineral Resources Ltd [2022] FCA 1166

[22] Helensburgh Coal Pty Ltd v Bartley and Anor [2024] FCAFC 45 at 55 ("Helensburgh Coal Pty Ltd").

[23] Fair Work Act 2009 (Cth) s 389(1)(a).

[24] Ibid s389(1)(b)

[25] Ibid s389(2)(a)-(b).

[26] Helensburgh Coal Pty Ltd at [58].

[27] 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").

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

[32] Helensburgh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54].

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