s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether the applicant's dismissal was a case of genuine redundancy - application dismissed.

• [1] On 20 May 2025, Mr Eamon Mansoor (the Applicant) filed an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following his dismissal from SAP Australia Pty Ltd (the Respondent/SAP) on 11 March 2025, which took effect on 29 April 2025. The Applicant began employment with the Respondent on 6 May 2024 as a Senior Solution Sales Executive and was employed in that position at the time of his dismissal.

• [2] At the hearing for this matter, the Applicant represented himself. The Respondent was represented with permission by Ms Vanja Bulut of Counsel, instructed by Mr Patrick Cunanan of Johnson Winter Slatter, Solicitors for the Respondent.

• [3] On 25 July 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 29 July 2025, the Applicant filed a Case Summary with numerous annexures in support of his Application;

(b) On 19 August 2025, the Respondent filed an outline of submissions, and witness statements from Mr Joshua James Beatty, Head of Business Transformation Management, and Ms Katrina Irwin, People Relations Partner for Australia and New Zealand; and

(c) On 26 August 2025, the Applicant filed a witness statement in reply.

• [4] The matter was heard on 5 September 2025, by way of a hearing (the Hearing).

• [5] The Applicant was employed by the Respondent as a full-time employee on 6 May 2024 in the position of Senior Solution Sales Executive in what the Respondent called the LeanIX team. His annual salary during his employment was $176,954 per annum. The Applicant's manager during his employment was Mr Joshua Beatty.

• [6] The Applicant completed his probationary period on 6 November 2024. On 2 December 2025, a new hire, Mr Curr, joined the Applicant's work team as a Senior Solution Sales Executive. The Applicant was asked to Mentor Mr Curr. The recruitment for the position eventually filled by Mr Curr began in June 2024.

• [7] During his employment the Applicant achieved over 300% of his sales targets in 2024 and was also selected for the SAP Winners Circle, an exclusive recognition for the top 1% of performers at SAP globally.

• [8] As a result of his 2024 results, the Applicant received commissions for Q3 and Q4 of 2024 of approximately $320,000 AUD, averaging to $160,000 AUD per quarter with a quota plan and defined sales territory.

• [9] During his employment the Applicant would have regular meetings with Mr Beatty on a weekly basis and had an active quota plan that included a defined territory that allowed him to complete his work and achieve his targets in 2024, selling the SAP LeanIX product.

• [10] The LeanIX team worked closely with another SAP team, the Signavio Team, and at the end of 2024 the LeanIX and the Signavio teams merged. There were 9 Solution Sales Executives in the merged team, and a reduction of one Sales Executive was required.

• [11] The Applicant claimed that after coming back from annual leave on 20 January 2025, he was left waiting for his territory and quota plan while all other members of his team were receiving theirs for the year. His quota plan was only provided after his redundancy notice and without a clearly defined territory. The Applicant stated in Q1 2025 he worked on leftover accounts from his 2024 territory while assisting with other accounts, without definitive ownership or recognition.

• [12] There was a dispute between the parties as to the regularity of one-on-one meetings in 2025. The Applicant claimed his first official meeting with Mr Beatty in 2025 occurred on 11 March 2025, during which a representative from HR joined the call to advise the Applicant that his role had been made redundant, with a final day of 29 April 2025. Mr Beatty and stated he had one-on-one catch-up meetings with the Applicant in Singapore on 22 and 23 January 2025 and then in Bangkok on 19 and 20 February 2025.

• [13] On around 13 February 2025, after she was informed about the possible redundancy, Ms Irwin asked Mr Beatty to complete a Position Elimination Justification Questionnaire (the Questionnaire), in line with SAP Australia's practice for potential redundancies.

• [14] Ms Irwin received the Questionnaire on 14 February 2025 and then requested that Mr Beatty complete a Job Skills Assessment (the Assessment) also in line with SAP Australia's practice for potential redundancies. He conducted the Assessment of the nine Solution Sales Executives together with Mr Wilkinson. Mr Wilkinson assessed the skills of the six Signavio

employees only (and therefore, not Mr Mansoor), while Mr Beatty assessed all nine Solution

Sales Executives as he had experience in working with both the Signavio and LeanIX teams, and as a result was considered to have had enough information to assess both.

• [15] Ms Irwin received the final version of the Assessment from Mr Beatty on 3 March 2025,

which identified Mr Mansoor as having the lowest score and alignment in his team with the competencies required of his role.

• [16] On 5 March 2025, Ms Irwin reviewed and discussed the Questionnaire and Assessment with Debbie Rigger, Head of People and Culture (Ms Rigger), in line with SAP Australia practice for redundancies, to ensure that she agreed with the selection of Mr Mansoor's position for redundancy based on his scores.

• [17] The Applicant succinctly summarised his case at the Hearing as follows:[1]

My position on that is that I saw that they made a redundancy but there's - what I could see was is that they made a hire very recent to the redundancy so I felt that there was a miscalculation in their required head count and that hire was proceeding through changes in the organisation.  And then as a result I lost my job when someone just joined a month ago and there's actually a clause in our contract where we're measured for suitability for six months which is something I passed in November 2024.

• [18] In the above quotation Mr Curr is the recent hire, and the clause in the contract was the probationary clause. The Applicant confirmed that that there was a reduction of one employee in the headcount of the new merged LeanIX and Signavio teams,[2] and agreed that he was disgruntled because he was the person chosen.[3]

• [19] The Respondent submitted that the Commission could be satisfied that the termination of the Applicant's employment was a case of "genuine redundancy" because:

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

(b) No modern award or enterprise agreement applied to the Applicant's employment; and

(c) It was not reasonable in all the circumstances for the Applicant to be redeployed within SAP's enterprise or the enterprise of an associated entity as there were no suitable vacancies.

• [20] The only remaining jurisdictional objection to the Application being determined by the Commission related to whether the Applicant's dismissal was a case of genuine redundancy (s.389), as stated in the Termination Letter dated 11 March 2025. Otherwise, I am satisfied that:

(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) His unfair dismissal application was lodged within the 21-day statutory time limitation found at s 394(2) of the Act;

(c) The Applicant is a person protected from unfair dismissal in that he had completed the minimum employment period set out in ss 382 and 383 of the Act; and

(d) His dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).

(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:

(a) the employer's enterprise; or

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

• [22] In the Form F3 Employers Response, the Respondent stated that the Applicant was not covered by any Award or Agreement, and the Applicant accepted that contention.

• [23] It is apparent that there are two relevant considerations arising from s.389, and the Applicant's Award/Agreement free status. They are:

(b) Was it reasonable in the circumstances to redeploy the person.

• [24] In Ulan Coal Mines Ltd v Howarth,[4] a Full Bench of the Commission considered the meaning of the term "the person's employer no longer required the person's job to be performed by anyone" in s.389(1)(a) of the Act. In paying particular attention to the Explanatory Memorandum, the Full Bench observed:

"Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy.

1547 Paragraph 389(1)(a) provides that a person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

• A machine is now available to do the job performed by the employee;

• The employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• The employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.

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."

• [25] It is clear, and the Applicant appears to accept,[5] that in the week commencing 20 January 2025, the Respondent undertook a restructure to merge the LeanIX and Signavio sales teams, after which there would no longer be an operational requirement for one of the nine Solution Sales Executives.

• [26] Arising from the Questionnaire and the Assessment between 14 February and 3 March 2025, the Applicant was identified as having the lowest score and alignment in his team with the competencies required of his role. Evidence led at the Hearing substantiated previous criticism of the Applicant regarding failures to update the Client Relationship Management software of the Respondent.[6]

• [27] The Applicant's complaint that the more recent hire should have been made redundant, traditionally referred to as "last on first off", ignores the Respondent's detailed assessment of alignment and competencies within the newly merged team.

• [28] Insofar as the Applicant complains that after coming back from annual leave on 20 January 2025, he was left waiting for his territory and quota plan while all other members of his team were receiving theirs, and of a lack of engagement by Mr Beattie, I consider that delay was not of significant duration and understandable in the circumstances of the restructure.

(b) Was it reasonable in the circumstances to redeploy the person.

• [29] In Ulan Coal Mines Limited v Honeysett & Ors,[7] the Full Bench found as follows in relation to deployment pursuant to s.389(2):

"It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer's enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant."

• [30] There existed a genuine need to reduce the relevant part of the workforce of the Respondent by one position. It was not a circumstance where redeployment of the Applicant could have been considered, given the small size of the relevant part of the workforce.

• [31] For the reasons above I find that the Applicant's dismissal falls within the definition of a genuine redundancy in s.389 of the Act. The Application is dismissed.

Ms V Bulut of Counsel, on behalf of the Respondent.

Mr P Cunanan Instructing, on behalf of the Respondent.

[4] [2010] FWAFB 3488 at [16] and [17].

[6] Transcript PN 184, 213, 221 and 229.

[7] [2010] FWAFB 7578 at [34] and [35].

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