s.394 - Unfair dismissal

Application for an unfair dismissal remedy - genuine redundancy.

• [1] Ms Michelle Crampton (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 in respect of her employment with Qinetiq Australia Pty Ltd (Respondent).

• [2] The Applicant commenced employment with the Respondent in November 2021 in the position of Executive Business Partner to the Managing Director. Her employment was terminated by reason of redundancy, effective 8 August 2025. The Applicant contends that the termination of her employment did not constitute a case of genuine redundancy and that her dismissal was unfair.

• [3] Pursuant to section 396 of the Act, the Commission must first determine whether the dismissal was a case of genuine redundancy before considering the merits of the application.

• [4] The matter was heard on 10 November 2025. At the hearing, the Applicant was self-represented and the Respondent was represented with permission by Mr S Hooper.

• [5] For the reasons set out below I find that the Applicant's dismissal was a case of genuine redundancy, and as a result she is not a person protected from unfair dismissal.

• [6] Briefly, the Respondent's parent company issued a profit warning on the London Stock Exchange on 17 March 2025. As a result of the profit warning, a global restructure was announced on 30 March 2025, which would result in the loss of 450 jobs across the business worldwide.

• [7] In early May 2025, the Respondent's Acting Chief Executive, to whom the Applicant reported, made a number of decisions about her leadership team and the business structure.

• [8] One of those decisions was that the Applicant's role as Executive Assistant was no longer required, along with around 60 other roles within the Respondent's enterprise.

• [9] The Chief Executive also decided to remove the role of Chief of Staff from her leadership team and instead create one merged role (ie combining the Chief of Staff and the Applicant's role) with the title of Chief Executive Operations Manager (CEOM).

• [10] The Respondent's evidence was that the Applicant's role was no longer required because of changes in the operational requirements of its enterprise.

• [11] On 14 July 2025, the Applicant and her support person met with the Chief Executive and the Chief People Officer at which time she was told that her role was at risk of redundancy. She was subsequently given a letter in the following terms:

As you are aware, since QinetiQ issued a profit warning in March, the organisation has been focused on a significant company restructuring activity with the intention of building a stronger future by improving the way we work and our competitiveness. Within the Australian sector, this activity has included a particularly strong focus on reducing our overhead costs in order to create a more sustainable cost base for our organisation.

In view of this, we have already taken the decision to remove the Chief of Staff role from the Australian sector. Upon further review, we are now proposing to combine some of the Chief of Staff's responsibilities with the responsibilities that are currently within the remit of the Executive Assistant to the Chief Executive role and create a new role of Chief Executive Operations Manager. I am very sorry to advise that as a result of this proposal, your role as Executive Assistant to the Chief Executive is now at risk of redundancy.

We would now like to enter into a redundancy consultation period with you. During this period, we will meet with you again to provide you with the opportunity to ask any questions you may have and to provide feedback regarding our proposal. This includes providing you with the opportunity to put forward any suggestions that you may have regarding reducing or avoiding the impact of this proposal. To that end, Victoria Halliday, our Chief People Officer, will arrange to meet with you again via Webex on Wednesday.

Please be aware that if, following the consultation period, we are unable to find a way to avoid the impact of this change, your employment will be terminated by reason for redundancy, with effect from Tuesday 22 July. In the event that we reach this outcome, you will be entitled to be paid the following:

We will provide you with further details of these amounts in due course, should we reach this outcome.

Finally, as discussed in our meeting today, we do not expect you to continue to attend work during this period. Instead, you will be placed on special paid leave with immediate effect to enable you to focus on this current process.

I appreciate that this news will have come as a shock. Please feel free to reach out to Victoria should you have any immediate questions. You can also access formal support through our Employee Assistance Programme, which is operated by Telus Health. They can be reached [telephone number].

• [12] That same day, the Chief People Officer provided the Applicant with a list of all current vacancies that were available as redeployment opportunities. The Applicant sought further information about the CEOM role including a copy of the position description.

• [13] The Applicant sent an email to the Chief People Officer on 15 July 2025 indicating she had the skills to perform the CEOM role and had previously performed many of the duties while working for the Respondent's previous Chief Executives.

• [14] The Chief People Officer responded indicating that she (and the Acting Chief Executive) were unaware of the Applicant having previously undertaken those duties and invited her to apply for the role.

• [15] A further meeting took place on 16 July 2025 during which the Applicant was invited to provide feedback on the Respondent's proposal.

• [16] Between 14 and 29 July 2025 there were a number of email exchanges between the Applicant and the Chief People Officer in which the Applicant sought further information regarding the CEOM role and other aspects of the redeployment process.

• [17] The Applicant was advised by email when the CEOM role was open for applications, however she did not submit an application for the role, or for any other roles that were available.

• [18] On 5 August 2025, a further meeting took place during which she was informed that her employment was terminated on the ground of redundancy. She was then provided with a letter in the following terms:

Further to our meeting, the purpose of this letter is to confirm the termination of your employment by reason of redundancy as a result of our recent organisational design activity.

As you are aware, we recently met with you to inform you that as a result of the organisational design activity, your role was at risk of redundancy. We commenced a consultation process with you in order to provide you with the opportunity to ask questions and provide feedback/suggestions on how we might mitigate your proposed redundancy. We also invited you to participate in our redeployment process, to enable you to seek out a suitable new role within the organisation.

As you are also aware, you chose not to express interest in any of the redeployment opportunities available within the organisation, and we have not identified any other means by which your redundancy could be mitigated. As a result, I regret to confirm that your employment will conclude on the grounds of redundancy, effective 8 August 2025.

As we have previously shared, you will be entitled to receive a redundancy payment upon termination of your employment. This will include:

• Payment in lieu of your notice period
• A statutory redundancy payment
• Payment in lieu of accrued annual and long service leave
• Any outstanding pay up to and including your last day of employment.

A copy of your redundancy entitlement calculation will be issued to under separate cover by Payroll. Please contact [email address] if you have any questions regarding your calculation.

As part of your redundancy package, you are also entitled to access outplacement transition support through our provider, Lee Hecht Harrison (LHH). The relevant LHH consultant will contact you in the coming days to provide you with information on the service and how it will work. All discussions will remain confidential between you and your outplacement consultant. A brochure outlining the support available is enclosed.

Please ensure that you have updated your personal contact details in SuccessFactors to ensure that LHH is able to reach you.

Our EAP provider, TELUS Health remains available for you to access as your transition out of the organisation. This is a free confidential counselling service which is available 24 hours a day, 7 days a week. To contact them simply call [telephone number]. Please refer to the enclosed EAP information sheet for more information.

If you have any questions regarding the content of this letter or next steps, please contact our Employee Services team at [email address].

Thank you for your contribution to our organisation, and I wish you every success for the future.

• [19] The Applicant's evidence set out some background to her employment with the Respondent which included her annual performance ratings and an outline of the duties she had previously performed.

• [20] She explained that she had sought a flexible working arrangement in April 2025 so she could relocate from Canberra to Nowra, which was approved, and as a result she terminated her lease in Canberra and relocated to Nowra in early May 2025.

• [21] The Applicant had taken personal leave from 20 May to 10 July 2025 as a result of her direct report being removed from her on 19 May 2025.

• [22] The Applicant confirmed in her evidence that she chose not to apply for the CEOM role. Her reasons for not doing so were that:

1. The position descriptions showed that the redundancy was not genuine;
2. She was initially advised by the Chief People Officer that she did not have the skillset for the CEOM role; and
3. The role was Canberra based, and she had just relocated to Nowra, although other staff were still able to enjoy flexible working arrangements.

• [23] Under s.385(d) of the Act a person is not unfairly dismissed if the dismissal was a genuine redundancy. The term 'genuine redundancy' is defined in s.389 of the Act:

(1) 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) 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:

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

• [24] Accordingly, there are three relevant matters for consideration in determining whether the Applicant's dismissal was a case of genuine redundancy, namely:

1. Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise?

1. Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

1. Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [25] The Explanatory Memorandum to the Fair Work Bill 2008 provides that a redundancy may be genuine where, for example, the employer only needs three people to do a particular task or duty instead of five, or where the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.[1]

• [26] Further, the process for selecting an individual employee for redundancy is not a relevant question as to whether the redundancy is a genuine redundancy.[2]

Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise?

• [27] As noted above, in considering the question of whether an employer "no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise", it is well established that the test can be met when job functions are retained but are redistributed.

• [28] An employee's job may be genuinely made redundant when the employee's duties, or aspects of them, are still being performed by other employees.[3] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[4]

• [29] The reference to "changes in the operational requirements of the employer's enterprise" in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.[5] The operational circumstances of a business which may result in a redundancy are matters within the direct knowledge of the employer. The evidentiary onus rests on the employer to provide direct evidence about the nature of the employee's job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer's enterprise.[6]

• [30] In Ulan Coal Mines Limited v Henry Jon Howarth and others[7], the Full Bench said:

"[17] 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.'"

[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

'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.'"

• [31] In Adams v Blamey Community Group[8], the Full Bench, in relation to s.389(1)(a), said:

"it is necessary to state at the outset that consideration of whether the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer's decision to make the person's job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee's job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, "Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements." What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee's job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary." (citations omitted)

• [32] Having considered the evidence and submissions, I am satisfied and find that the Applicant's Executive Assistant role no longer existed after the restructure. It was one of around 60 roles that were made redundant. The duties were combined with the former Chief of Staff role and as such, her role did not survive the restructure. The restructure is clearly a change to the operational requirements of the Respondent's enterprise.

Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

• [33] The Respondent gave evidence that the Applicant was not covered by a modern award or enterprise agreement, and this was not disputed by the Applicant.

• [34] As a result, I am satisfied that the Respondent was not required to consult, however it is clear from the matters set out earlier that the Applicant had been consulted.

Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [35] As set out earlier, s.389(2) provides that a person's dismissal is 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.

• [36] For the purposes of section 389(2) of the Act, the Commission must consider whether 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. There must be an appropriate evidentiary basis for such a finding.[9] The word 'redeployed' in section 389(2) of the Act should be given its ordinary and natural meaning, which is to 'transfer to another job, task or function'.[10]

• [37] The Applicant was given a list of possible redeployment opportunities, including for the CEOM role, however she did not apply for any of the available roles.

• [38] For the above reasons, I am satisfied that the Applicant's employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act.

• [39] As a result, the Applicant is not an employee who is protected from unfair dismissal and her application under s.394 of the Act must be dismissed. An order dismissing the application will be issued with this decision.

S Hooper of Australian Industry Group for Qinetiq Australia Pty Ltd.

[1] See Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1548.

[3] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404-5.

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

[5] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496 at p. 373.

[6] Kieselbach v Amity Group Pty Ltd PR973864 at [34].

[7] [2010] FWAFB 3488.

[8] [2016] FWCFB 7202.

[9] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36].

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