s 394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection: genuine redundancy - dismissal found to be a genuine redundancy situation - jurisdictional objection upheld - application dismissed.

• [1] On 17 February 2025, Ms Lydia Lynch (the Applicant) made an application to the Fair Work Commission (FWC) under s 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Savills (WA) Pty Ltd (the Respondent). On 3 March 2025 the Respondent submitted its Form F3 response to the application in which it raised a jurisdictional objection that the Applicant's dismissal had been a case of genuine redundancy.

• [2] The Applicant was employed by the Respondent as the Operations Manager for the Busselton Shopping Centre in the south-west of Western Australia, a position she had held since July 2023. On 7 February 2024 the Respondent advised the Applicant that it was intending to make her role redundant as part of a restructure of its operations in Busselton. The Applicant made a proposal about a restructure of the operation that would allow her to continue working in her role. However, the Respondent rejected this proposal and at a meeting on 12 February 2024 advised the Applicant that her position was redundant.

• [3] Both parties were self-represented and so the issue of permission to appear did not arise.

a) The Applicant was an employee of the Respondent and her employment was terminated by the Respondent; and

b) The unfair dismissal application was made within the 21-day period as required under s 394(2) of the Act; and

c) The Applicant is protected from unfair dismissal under section 382 of the Act in that she has greater than 6 months' service and her annual rate of earnings was below the high-income threshold which is currently $175,000 per annum; and

d) The Respondent is not a small business as defined in the Act.

However, the Respondent contends that the dismissal was a case of genuine redundancy and so before examining the merits of the application, I must determine this issue.

Was the dismissal a case of genuine redundancy?

• [5] Where a dismissal is a case of genuine redundancy, the FWC does not have jurisdiction to deal with an s 394 application made in respect of that dismissal. The Act sets out the meaning of genuine redundancy in s 389, as follows:

(1) [Meaning of genuine redundancy] A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) [Exception where redeployment reasonable] A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer's enterprise; or

(b) the enterprise of an associated entity of the employer.

• [6] In the present case, it was not disputed between the parties, and I find that there was no modern award or enterprise agreement that applied to the Applicant's employment. As such, the matter at (1)(b) of s 389 is not a relevant consideration. I note that there is some disagreement between the parties as to whether such consultation as was carried out was appropriate. However, the test set out in the Act only requires me to investigate this issue if there was a process prescribed in an award or enterprise agreement. I am thus left with the requirement to determine whether the Applicant's job is no longer required, and whether it would have been reasonable for her to be redeployed.

Is the Applicant's job no longer required to be performed by anyone?

• [7] The Applicant submitted that in essence her job was still required to be performed. She claimed that her

"...core duties remained necessary to the business after her dismissal and continued to be performed by existing employees or contractors."[1]

"(p)arts of (her) workload were redistributed to other employees rather than being eliminated."[2]

• [8] In further submissions, the Applicant proposed that the redundancy was in retaliation for complaints she had made, that the justification for the redundancy was either non-existent or unsubstantiated, and that the rationale for the redundancy changed between financial savings and restructuring. She further claimed that no independent business analysis or restructuring plan was provided to justify the redundancy and that independent tenant letters confirmed that her role was still required.

• [9] I should note at this point that the Applicant submitted into evidence an audio recording that she had covertly made during the initial meeting to discuss her redundancy. The Respondent objected to the recording being admitted as it claimed that it was illegally procured. The Respondent noted in its submissions that the FWC may allow such material, but that there was case precedent going to when and if this should happen. The Respondent noted that the FWC had previously adopted the approach of other courts to such evidence, with such approach being drawn from s 138 of the Evidence Act 1995 (Cth) (Evidence Act).

• [10] The Respondent drew my attention specifically to the approach taken by Commissioner Thatcher in Walker v Mittagong Sands Pty Ltd where in assessing a case of potentially illegally obtained evidence, the Commissioner stated as follows:

"...I intend to be guided by the provisions of s 138. As a first step I will consider whether the evidence sought to be admitted was in fact unlawfully obtained or in consequence of evidence that was unlawfully obtained. If that is the case, as a second step, I will consider whether, in the circumstances of the case, including appropriate weight to the factors in s 138(3) that are applicable and any other relevant considerations, the desirability of admitting the evidence outweighs the undesirability of admitting such evidence."[3]

The factors in s 138(3) of the Evidence Act referred to are as follows:

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject - matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

• [11] In deciding to exclude the recording, I was mindful in the first instance that under the Surveillance Devices Act 1998 (WA) the use a recording device to record a private conversation is unlawful, but doing so may not be an offence if the action is reasonably necessary,

"for the protection of the lawful interests of (the person making the recording)."[4]

It was the Applicant's argument that she relied upon this particular provision to remove the element of illegality from her actions. However, I formed the view that it did not fall to the FWC to make a ruling on whether the exemption set out above was actually applicable in her case. Given this, I proceeded on the basis that the action was prima facie unlawful.

• [12] Turning then to the desirability of admitting the evidence, I questioned the Applicant as to how the evidence would assist her case. It appeared to me based on her answer that such probative value as might be found in the recording was marginal at best and was not such that it would have any meaningful impact on my deliberations. I was also mindful of the Respondent's submission that the FWC should not condone unlawful recordings of private conversations in the workplace. Previous decisions of the FWC have found covert recording of meetings and conversations in the workplace to be serious misconduct.[5] As such, I formed the view that given the limited probative value of the evidence, and given that the Applicant could in any case cross examine one of her interlocutors from that meeting, the desirability of discouraging covert recordings was such that the evidence should not be admitted.

• [13] The Applicant also submitted some video footage and still shot photos drawn from those videos which she claimed were representatives of the Respondent at the centre performing her job. However, in cross examination she was unable to definitively identify how it was that the persons could be said to be performing her work other than claims that some of the footage showed them entering her office.

• [14] The Respondent gave context to its submission by drawing upon established case law to provide the following summary:

"The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge. Where there is no longer any function or duty to be performed by an employee, their role becomes redundant even where aspects of that employee's duties are still being performed by other employees. This does not mean that if any aspect of the employee's duties is still to be performed by somebody they cannot be redundant."[6] (citations removed)

• [15] The Respondent submitted that discussions with the owner of the shopping centre had taken place and led to a decision to reduce the on-site presence considerably. In evidence and unchallenged were two emails.[7] The first was from the Respondent to the owners acknowledging that the owners wanted to improve profitability at the Busselton centre. The second confirmed the owners' preferred staffing model and tabled a proposal whereby a representative of the Respondent would visit the centre "once a week." The Respondent submits that the owner approved the decision and advised the Respondent that it would no longer reimburse the Respondent from the cost of the salary for the Centre Manager. As a consequence, the Applicant's job was made redundant.

• [16] The Respondent conceded that the persons identified in the video footage and photos submitted by the Applicant, being a Mr Ward and a Mr Ma, were indeed its employees. However, consistent with the unchallenged evidence of Ms Lee,[8] it submitted that those two persons held different roles in the Respondent's organisation to that previously occupied by the Applicant. Ms Lee's evidence confirms that Mr Ward is the Respondent's Facilities Manager and is responsible for a number of centres in Western Australia, including the centre in Busselton. In response to my question during the hearing, Ms Lee confirmed that Mr Ward had held this job for some years and, when required as part of his duties, had previously visited the Busselton centre. In essence, his role had not changed.

• [17] With respect to Mr Ma, Ms Lee's evidence was that he is an Assistant Property Manager in the Respondent's Asset Management division based in Perth. Her further evidence was that members of the Asset Management team such as Mr Ma were, on a rotating roster, visiting the Busselton centre approximately one day per week at the time of the hearing. Ms Lee notes in summary that neither Mr Ward nor Mr Ma perform the same role or hold the same responsibilities as the Applicant, as her role was made redundant and not replaced.

• [18] The Applicant provided reply submissions but much of these submissions were, in essence, simply reiterating previous points she had made. One new matter that did arise was the allegation that despite the Respondent's claims, the Respondent itself was the instigator of the redundancy rather than the owners of the centre. She drew my attention to various documents tendered by the Respondent that she claimed suggested that the Respondent was indeed behind the idea to make her redundant.

• [19] In assessing this issue, I am mindful that the redundancy appears to have had a significant impact on the Applicant. It is therefore not surprising that she has presented every item of evidence that she thought could in any way be said to support her claim. I offer no criticism of her for doing so. I suspect that mixed with the shock and distress that would usually attend the termination of employment, the Applicant has deep suspicions about the motives of the Respondent. However, the task for the FWC is to decide whether the Respondent no longer requires her former job to be done as a result of a business-related decision.

• [20] Firstly, I accept the evidence, as discussed at [15] above that the Respondent had discussions with the owner of the centre about a possible reduction in staffing. From the text of those emails it can be seen that the Respondent initially reaches out to the owners of the centre to advise that they are focussed on supporting the owners' strategies - of which they clearly have become aware - to improve the profitability of Busselton. A subsequent email from the Respondent to the owners thanks the owners for:

"...clarifying the desired resourcing model for Busselton."[9]

• [21] I am satisfied from this that it was the owners who made the call to remove the permanent onsite presence, and the Respondent responded by offering scenarios as to how things might proceed without such presence. While the Applicant may speculate about conversations and emails that were not in evidence, I am satisfied that the narrative contained in the two emails is such that I can safely find that there was a business imperative for the redundancy. In reaching this conclusion I am also mindful that there is no evidence to suggest that the Respondent has simply replaced the Applicant: I am satisfied that the owners of the centre are thus receiving a much lower level of service from the Respondents, and this is consistent with their desire to reduce costs as a way of improving profitability.

• [22] The Applicant seeks to make much of current employees of the Respondent performing some of her duties. As the Respondent correctly submitted, drawing on the findings of Senior Deputy President Hamberger in Kekeris v A Hartrodt Australia Pty Ltd (Kekeris), the continuation of some duties that were previously attached to a job does not mean that the job itself - in its entirety - is no longer required. As was found in Kekeris (my emphasis):

"When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a 'genuine redundancy' where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists."[10]

• [23] I am satisfied, based on the evidence submitted, that while there is still a presence maintained by the Respondent at the Busselton centre, that presence does not correspond with the job previously performed by the Applicant. With respect to Mr Ward, I find that he is simply continuing the work he has done for some years as part of his role, which sometimes requires a visit to Busselton. With respect to Mr Ma, I accept that he or an equivalently qualified colleague is visiting the centre an average of once per week. It may be that on occasions it is more often than once. It may also be that Mr Ma performs some tasks previously performed by the Applicant. However, the evidence does not support a conclusion that he is at the centre on a permanent basis, as the Applicant was, and performing all tasks associated with her role.

• [24] For that reason, I am satisfied that the job previously occupied by the Applicant has indeed been made redundant. For completeness, I will address some of the other issues raised by the Applicant to make my reasoning very clear. The Applicant claimed that the core duties remained necessary to the business and continued to be performed. While the Applicant does not specify what these core duties are or indicate how she can be certain they are still performed, as set out above, duties can survive a redundancy. I accept that there may be some duties still performed. However, I am satisfied that there is no permanent presence - being a full-time employee - engaged at the centre to perform all of the duties that made up the Applicant's job.

• [25] The Applicant also took issue with the fact that the Respondent - on her submission - was somewhat inconsistent in terms of the reasons it gave for the redundancy, never presented any of the financial data supporting the decision and that independent tenant evidence suggested the role remained necessary. In the first instance, the views of the tenants are not relevant to the question of whether the job is redundant. They merely suggest that some people think the decision was a bad one. It may prove over time that the decision was indeed ill-considered. However, the job of the FWC is not to take over the managerial function of a Respondent and decide whether a particular redundancy is a good idea in terms of customer satisfaction. It is rather to assess as to whether the job is actually redundant.

• [26] Issues such as provision of financial data to support a redundancy might arguably be part of a consultation process - subject of course to commercial confidence. However, as I have found above there are no strict consultation obligations placed upon the Respondent. As such, while not being given the complete picture may well have been frustrating for the Applicant, I can find no reason as to why the Respondent should have been compelled to provide such data. I am mindful that there is something of a difference of view between the Applicant and the Respondent regarding the reasons given to the Applicant for the redundancy. However, I have satisfied myself on that point at [20] and [21] above.

• [27] It is also the case that the parties differ on whether the Applicant was told there would be no presence at Busselton, or alternatively no permanent presence. In the end, I am not sure that this disagreement can change the fact that, on the evidence provided, the Applicant's job no longer exists at the Busselton centre.

• [28] I am also mindful that the Applicant sought to use the video footage and photos of Mr Ma and Mr Ward at the centre, and some logs of entry and exit by persons she claimed to be those persons to demonstrate her job still existed. These items of evidence suggested to me that at best, those two persons did, during a particular small window of time shortly after the Applicant's redundancy, visit the centre. They do not prove what they did while they were there. They also do not indicate how often those persons have visited the centre after the dates of the videos, and I accept Ms Lee's evidence about the reasons for their attendance, and the current frequency of that attendance.

• [29] Finally, I will comment on the Applicant's assertion that the dismissal was retaliatory. It is important I do so as the Applicant has raised the possibility that the impetus for the redundancy may not have been business-related but rather a desire to remove her from the business. Firstly, there is no specific evidence to support that proposition whereas, as I have indicated above, there is evidence to suggest that the Respondent was reacting to the business needs of its client. Secondly, while the Applicant refers in a letter attached to her originating application to a complaint she had made in October 2024 about her director, she provides no evidence as to how this complaint led to the final decision in February 2025 to make her position redundant.

• [30] The Applicant - in annexures to her submissions - provides a series of emails between herself and various members of the Respondent's management team in September 2024. It is unclear from her submissions as to whether the interactions with her director that form part of these email exchanges are the reason for the complaint or if the comments the Applicant made to the HR manager in these emails are the complaint itself. Nevertheless, while on their face the emails indicate some level of friction, I do not find that I can be satisfied that they rise to the level of evidence that supports a conclusion that the Respondent had formed a view to get rid of her.

• [31] I make a final observation. The Applicant's issues in September of 2024 - as outlined in the emails referred to above - appear to have included some issues with the owners of the centre. Given this, it might be tempting to explore the fact that the discussions between those owners and the Respondent regarding a reduction in the Respondent's presence on site appear to have commenced in October 2024 (albeit that the actual redundancy did not take place until February). Clearly, this temporal proximity has attracted the attention of the Applicant. However, given the text of the emails about those discussions that I have noted above, the FWC would in my view be falling into the realm of supposition rather than analysis if it were to follow such a thread in the absence of any sound supporting evidence.

Would it have been reasonable to redeploy the Applicant?

• [32] The Applicant submitted that she should have been redeployed. Her submissions canvassed the following issues:

"Suitable alternative employment existed within the organisation but was not offered to the Applicant.

The employer failed to explore or offer redeployment opportunities within the organisation.

Savills (WA) Pty Ltd forms part of a larger national company with multiple properties under management across Australia. Given this scale, it was reasonable to expect that redeployment opportunities would exist and should have been properly considered and offered."[11]

• [33] At the hearing, the Applicant also raised the issue of her own proposal for a restructure and submitted that this proposal was not properly considered by the Respondent. The proposal itself was in evidence before the FWC and in essence, was making a case for a dedicated onsite management team for the Busselton centre. The proposal itself did not raise the possibility of the Applicant working on a part time or casual basis. However, the Applicant's evidence is that she made this offer verbally at her meeting to discuss the redundancy. Her further evidence is that the Respondent rejected the proposal, including in the modified form of the Applicant working part time or casually, and such rejection was given without any discussion of the proposal. As such, she took the view that this particular redeployment opportunity was not properly considered.

• [34] The Respondent submitted that, as per the unchallenged witness evidence of Ms Lee, it had investigated opportunities within its business and found no jobs available into which it would have been reasonable to redeploy the Applicant. It noted further that the Applicant herself had not identified any positions into which it would have been reasonable to redeploy her.

• [35] While the Applicant has made claims about the size of the Respondent and submitted that it had positions available, she has not identified any such positions, nor has she provided any evidence to support her claim that other positions were available. As such, I am inclined to accept the evidence of Ms Lee, who I found to be a very credible and straightforward witness. In both her statement and under cross-examination Ms Lee's evidence was that the business had examined redeployment options but had been unable to identify anything appropriate. As such, I am left to consider the option proposed by the Applicant herself, being a modification of her role.

• [36] In the first instance I suspect that the proposal put forward by the Applicant was viewed as problematic in terms of addressing a situation where the owners of the centre would no longer be paying for a Centre Manager. The Applicant's proposal - though well-constructed and logically presented - seemed to me to be more of an argument that the Centre Manager position was more valuable to the operation than the Respondent and the owners had assumed. It did not in any way address a shortfall of funding or a need to reduce costs.

• [37] While I accept the Applicant's evidence that she put the option of part time or casual on the table verbally, it is clear that the Respondent did not accept that this was an option it could consider. While I have some level of disquiet about the Respondent not offering a more considered answer to the proposal, I am not satisfied that it is reasonable for me to draw a conclusion that the proposal - in its modified form - was a reasonable redeployment option.

• [38] As such, given the evidence of Ms Lee which I have accepted, I find that there was no position into which the Applicant could have been reasonably redeployed.

• [39] For the sake of completeness, I will briefly comment on some further issues raised by the Applicant in support of her case. For example, in her submissions the Applicant claims that the dismissal was procedurally unfair. I make no comment on whether this was the case. However, I note that the structure of the Act is such that issues of unfairness cannot be considered by the FWC where a dismissal is found to be a genuine redundancy. The genuine redundancy puts the dismissal beyond the FWC's jurisdiction.

• [40] The Applicant has also raised the impact of the dismissal on her both financially and personally. I do not in any way seek to challenge her with respect to this. I accept that the dismissal has had a major impact on her. However, the FWC is constrained by the provisions of the Act. While the financial impact of a dismissal can be considered by the FWC in assessing harshness, this can only occur where the FWC is assessing the fairness of the dismissal - which it cannot do in this case. Even if the FWC were undertaking such an exercise, it is also clear that such distress and anxiety as has been visited upon the Applicant could not form part of any compensation the FWC could award.

• [41] Notwithstanding the effect the dismissal has had on the Applicant, I am satisfied based on the evidence before me that:

a) The Respondent no longer requires the Applicant's job to be done by anyone as a result of changed operational requirements; and

b) There was no award or enterprise agreement covering the Applicant's employment and as such no consultation requirements to be met; and

c) It would not have been reasonable for the Applicant to be redeployed.

• [42] Given this, I find that the Applicant's dismissal was a case of genuine redundancy. Given this, the FWC has no jurisdiction to deal with the Applicant's unfair dismissal claim. An order dismissing the application will issue.

[1] See Applicant's submissions page 2 final dot point.

[2] See Applicant's submissions page 3 first dot point.

[3] Walker v Mittagong Sands Pty Ltd [2010] FWA 9440 at [72].

[4] See Surveillance Devices Act 1998 (WA) s 5(3)(d).

[5] See for example Mocanu, Tiberiu Cristian v Kone Elevators Pty Ltd [2018] FWC 1335 at [83]; and Thomas, Trevor Ray v Newland Food Company Pty Ltd [2013] FWC 8220 at [185]- [186].

[6] See Respondent submissions page 2 paragraph 7.

[7] See Court Book at pages 128 and 130.

[8] See witness statement of Ms Rebekah Lee pages 1-2 paragraphs 5-11.

[10] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].

[11] See Applicant's submissions section 3 pages 2-3.

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