s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - whether job still required - whether consultation obligations satisfied - whether redeployment was reasonable - finding of genuine redundancy - jurisdictional objection upheld - application dismissed

[1] Molly Tamulevich was employed by World Animal Protection Limited (WAP) in the full-time role of Campaign Manager - Food Systems from 25 September 2023 until she was dismissed due to redundancy on 29 August 2025. WAP is the Australian and New Zealand part of a global non-profit group of organisations which advocate for animal welfare. Ms Tamulevich filed an unfair dismissal application on 19 September 2025. WAP submits that Ms Tamulevich's dismissal was a case of genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (FW Act). If that argument is correct, Ms Tamulevich cannot have been unfairly dismissed based on the definition of an unfair dismissal in s.385 of the FW Act. This decision concerns whether Ms Tamulevich's dismissal was a case of genuine redundancy.

[2] I conducted a hearing in Sydney on 3 March 2026. Ms Tamulevich represented herself and provided evidence in support of her case. Ms Tamulevich also relied on a bundle of documents that were produced by WAP in response to a production order. I granted permission for WAP to be represented by a lawyer at an earlier procedural hearing. WAP relied on evidence from Ben Pearson (Country Director).

Whether WAP no longer required Ms Tamulevich's job to be performed by anyone because of changes in its operational requirements - s.389(1)(a)

• • WAP had approximately 26 employees across Australia and New Zealand at the time of Ms Tamulevich's retrenchment. Ms Tamulevich was one of three employees in a Campaigns Team. [1]

• Prior to Ms Tamulevich's retrenchment, the Campaigns Team consisted of:

• - Head of Campaigns (Level 11).
• - Campaign Manager - Wildlife (Level 9a).
• - Campaign Manager - Food Systems (Level 9a).[2]

• A review was undertaken which identified that Ms Tamulevich's role may not be required due to:

• - Operational requirements not warranting a role at Ms Tamulevich's level of seniority.
• - A need to strengthen the organisation's capacity in finance and investigations.
• - A need to allocate resources more effectively.[3]

• The proposed new interim structure of WAP's Campaigns Teams was:

• - Head of Campaigns (Level 11).
• - Campaign Manager - Wildlife (Level 9a).
• - Campaign Specialist - Finance, Investigation and Lobbying (Level 8; 12 - 24-month fixed term; due to be trialled in 2026).
• - Campaign Project Officer (Level 7; part-time 0.8 FTE; 5-month contract).

WAP intended to create a Campaign Project Officer role (Level 6 or 7) in 2027 on a 12 - 24-month fixed term contract. [4]

• • WAP determined the duties Ms Tamulevich had been performing could be split between the new part-time Campaign Project Officer (Level 7) role, Ms Milthorpe (Head of Campaigns), and Mr Pearson (Country Director).[5]

• • A Retention Manager role in WAP's fundraising team was also identified for redundancy around the time of Ms Tamulevich's retrenchment.[6]

[4] I did not find WAP's evidence about its operational changes to be overly clear and compelling. Mr Pearson also made alterations to his witness statement during the hearing to clarify that Ms Tamulevich's redundancy had not been a specific recommendation from a broader strategic review conducted by WAP. This lack of clarity has no doubt contributed to Ms Tamulevich feeling extremely aggrieved about the decision to make her redundant.

[5] However, I am not required to assess the operational merits of the relevant changes when assessing whether Ms Tamulevich's job was no longer required by WAP. It is clear WAP determined it needed to devote more resources to campaigning directed at restricting the flow of capital to businesses linked to animal harm and that it did not consider its existing campaigns structure was suited to this new focus. WAP also identified it did not need two employees at the senior Level of 9a in its Campaigns Teams for Australia and New Zealand.

• [6] I am satisfied the evidence led by WAP establishes that Ms Tamulevich's job as Campaign Manager - Food Systems was no longer required to be performed by anyone due to changes in WAP's operational requirements. The evidence demonstrates that WAP no longer required two Campaign Manager (Level 9a) positions with one position devoted to Food Systems Campaigns and the other to Wildlife Campaigns. WAP identified that Ms Tamulevich's duties could be split between Mr Pearson, Ms Milthorpe and a new lower-level part-time Campaign Project Officer (Level 7) role. These changes reflect a reasonably standard reallocation of duties as part of a redundancy process. I do not consider the fact that WAP subsequently engaged an external contractor to perform the duties of Campaign Project Officer (Level 7) role establishes that Ms Tamulevich's job was still required to be performed.[7]

[7] I find Ms Tamulevich's job as Campaign Manager - Food Systems was no longer required to be performed by anyone due to changes in WAP's operational requirements. I find the first element of the definition of a genuine redundancy in s.389(1)(a) of the FW Act is satisfied in this case.

Whether WAP complied with consultation obligations - s.389(1)(b)

[8] The consultation process implemented by WAP included the following:

• • Ms Tamulevich attended a meeting with Mr Pearson and Maddie McKenzie (People & Culture Manager) on 4 August 2025. Ms Tamulevich was advised that her role may no longer be required. Ms Tamulevich was advised that a consultation meeting would be held the next day on 5 August 2025 and then a meeting to communicate the final decision would occur on 7 August 2025.[8]

• • Ms McKenzie sent an email to Ms Tamulevich at 3:21pm on 4 August 2025 which provided further detailed information about the proposed changes. Ms McKenzie also provided a position description for the part-time Campaign Project Officer role which had been identified as a redeployment option.[9]

• • The meeting on 5 August 2025 did not proceed because Ms Tamulevich was off work on a mental health day. Ms Tamulevich subsequently provided a medical certificate which confirmed she was unfit for work from 5 August 2025 to 8 August 2025.[10]

• • On 6 August 2025, Ms McKenzie sent an email confirming that the consultation period was extended to 12 August 2025 given Ms Tamulevich was unwell.[11]

• • Ms Milthorpe sent an email to Ms Tamulevich on 8 August 2025 which cancelled a regular 1:1 meeting and indicated Ms Milthorpe would cover Ms Tamulevich's campaign work on an interim basis to allow Ms Tamulevich to focus on engaging with the consultation process.[12]

• • A consultation meeting was scheduled for 13 August 2025. Ms Tamulevich declined to attend this meeting and requested the materials in writing.[13]

• • On 13 August 2025, Ms McKenize sent Ms Tamulevich an email setting out an updated timeline for the consultation process which would run from 13 August 2025 to 27 August 2025. Ms McKenzie also provided a breakdown of Ms Tamulevich's entitlements if her employment was made redundant.[14]

• • Ms Tamulevich enquired about what work she was required to do during the consultation process on 14, 18, and 20 August 2025. Ms Milthorpe advised Ms Tamulevich she should focus on the consultation process and that her work was being managed by other employees.[15]

• Ms Tamulevich provided a written response to Ms McKenzie via email on 26 August 2025. Ms Tamulevich thanked Ms McKenzie for the revised consultation timeline and provided the following response:

"This has been a really difficult process for me, and I am still processing the significant change that is being implemented. I feel that there is still a substantial amount of work for me to perform here, and I have been surprised by the redundancy proposed."[16]

• • The final decision to terminate Ms Tamulevich's employment was then communicated via email and a formal termination letter on 27 August 2025 with Ms Tamulevich's last day of employment to be 29 August 2025.[17]

[9] WAP initially indicated in its employer response form that the Animal Care and Veterinary Services Award 2020 (Award) covered Ms Tamulevich's employment with WAP. WAP subsequently retracted that position and argued Ms Tamulevich's position does not fall within the classifications in the Award. However, even if WAP is correct in that position, Ms Tamulevich's employment may still be covered by the Miscellaneous Award 2020 (Miscellaneous Award) or the Clerks - Private Sector Award 2020 (Clerks Award). The consultation requirements in the Award, Miscellaneous Award, and Clerks Award are essentially the same and reflect a model consultation term for modern awards. I will assume WAP was required to comply with the consultation obligations of the model award term for the purposes of this decision.

[10] The model award consultation obligations apply when an employer makes a "definite decision" to make major changes that are likely to have significant effects on employees. The employer in general terms must:

(i) Give notice of the change to affected employees and their representatives.

(ii) Discuss the changes with the affected employees, with the discussions commencing as soon as practicable after the definite decision has been made.

(iii) Provide employees with all relevant information about the changes in writing including the nature of the changes, the impact of the changes, and other matters likely to affect employees.

(iv) Promptly consider any matters raised about the changes by the employees and their representatives.

[11] I am satisfied that WAP complied with the award consultation obligations identified above. Ms Tamulevich was given notice of the changes on 4 August 2025 and was provided with a detailed explanation about the changes. WAP attempted to meet with Ms Tamulevich on several occasions, but Ms Tamulevich was either unable to attend or declined to attend. Ms Tamulevich was provided with information about a redeployment opportunity and was provided with calculations for the payments she would receive if she was made redundant. Ms Tamulevich was provided with an opportunity to raise concerns about the changes.

[12] Assuming (without deciding) that the model award consultations obligations applied, I find that WAP complied with the obligations. I find the second element of the definition of a genuine redundancy in s.389(1)(b) of the FW Act is satisfied in this case.

[13] However, I agree with Ms Tamulevich's submission that the initial consultation period proposed by WAP, which was 5 to 7 August 2025, was unreasonably short particularly given Ms Tamulevich's medical conditions. A short consultation period has the potential to convey to an employee that an employer is just "ticking the boxes" and that a final decision has already been made. I suspect that is how Ms Tamulevich felt in this case. I consider Ms Tamulevich's engagement with the consultation process was severely impacted by the initial short timeframe proposed by WAP.

[14] I also consider it is odd that WAP brought Ms Tamulevich's dismissal date forward from 1 September 2025 until 29 August 2025 seemingly because Ms Tamulevich's response to the consultation process was brief. That decision had the potential to present as Ms Tamulevich being punished for providing a brief response which is obviously not an appropriate part of a redundancy process.

Whether it would have been reasonable for Ms Tamulevich to be redeployed within WAP's enterprise - s.389(2)

[15] Ms Tamulevich did not agree to be redeployed to the part-time Campaign Project Officer (Level 7) role offered by WAP for a fixed period of five months. It was not reasonable for Ms Tamulevich to be redeployed to a lower paid position that she did not wish to accept.

• [16] Ms Tamulevich argued that she was unfairly deemed unsuitable for the proposed position of Campaign Specialist - Finance, Investigation, and Lobbying. I did not find WAP's explanation about why Ms Tamulevich could not have performed this type of role to be overly compelling.[18] WAP also did not involve Ms Tamulevich in the discussions about whether she could be suitable for this role which denied Ms Tamulevich any visibility in relation to the decision-making process. However, the Campaign Specialist - Finance, Investigation, and Lobbying role was only a proposition when Ms Tamulevich's employment ended. The position has still not come into existence as at the time of the hearing. I do not consider it would have been reasonable for Ms Tamulevich to be redeployed to this position given the degree of uncertainty about whether the role would come into existence at the time of Ms Tamulevich's dismissal.

• [17] Ms Tamulevich referred to being redeployed to a role in the global organisation and indicated some of these roles are based in Australia and New Zealand. Mr Pearson provided brief evidence which suggested none of these roles were available at the time of Ms Tamulevich's dismissal.[19] The evidence suggests WAP could have done more to explore these redeployment options. However, Ms Tamulevich has not identified a position in the global organisation that she could have reasonably been redeployed into. I am not satisfied it would have been reasonable for Ms Tamulevich to be redeployed in the global organisation given there is no evidence that there were any suitable and available roles at the time of Ms Tamulevich's dismissal.

[18] I find the evidence does not establish it would have been reasonable for Ms Tamulevich to be redeployed with WAP's enterprise or the enterprise of an associated entity. I find the exception in s.389(2) of the FW Act to the definition of a genuine redundancy is not applicable in this case.

[19] Given my findings above, Ms Tamulevich's dismissal was a case of "genuine redundancy" as defined in s.389 of the FW Act. That means Ms Tamulevich cannot satisfy the definition of an unfair dismissal in s.385 of the FW Act.

[20] WAP's jurisdictional objection is upheld.

[21] Ms Tamulevich's application is dismissed.

Ms B Moore from Corrs Chambers Westgarth representing WAP.

[2] Exhibit R1, CB page 150 and 151 of 417.

[7] CB #2 - Produced Documents - page 227 of 253.

[9] Exhibit R1, CB page 144 to 153 of 417.

[15] Exhibit R1, CB page 177 to 181 of 417.

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