The attached document replaces the document previously issued with the above code on 18 June 2025 correcting an omission in [38] and minor typographical errors

[2025] FWC 1601

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objections - Small Business Fair Dismissal Code and genuine redundancy - despite failure to comply with consultation obligations dismissal not unfair.

• [1] Mr Gabriel Augustin makes application under s.394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. He was dismissed by AgUnity by letter dated 28 February 2025. AgUnity contends that Mr Augustin's dismissal was a genuine redundancy within the meaning of s.389 of the Act. AgUnity also contends that it complied with the Small Business Fair Dismissal Code. Mr Augustin refutes those suggestions and contends that his dismissal was harsh, unjust and unreasonable. He seeks compensation in lieu of reinstatement. AgUnity contend that, if it is wrong on its other arguments, the dismissal was not harsh, unjust or unreasonable.

• [2] At the determinative conference conducted to deal with Mr Augustin's claim, Mr Augustin represented himself. AgUnity was represented by its CEO Mr David Davies and its COO Mr Angus Keck.

• [3] I have decided that Mr Augustin's dismissal was not a genuine redundancy as AgUnity did not meet its award obligations to consult and that the Small Business Fair Dismissal Code did not apply. I find that the circumstances surrounding the dismissal were not harsh, unjust or unreasonable and that the application for an unfair dismissal remedy should be dismissed.

• [4] Mr Augustin was employed by AgUnity from 17 June 2019 until his dismissal on 28 March 2025. He worked as a software developer. He was initially engaged on a full time basis. He started working 30 hours per week over four days in 2020 during the Covid pandemic. His salary was based on a figure of $100,000 per annum, which was applied on a pro rata basis after he moved to part time employment.

• [5] AgUnity's business provides software solutions for smallholder farmers around the world to assist in operational matters and meeting regulatory obligations. The business provides the service under contracts with non-government organisations that provide assistance to small farmers. The company's services have helped thousands of farmers out of poverty. Tens of thousands of farmers in Ethiopia rely on the services. The contractual arrangements under which that assistance is provided are dependent on grants. A large number of those grants are funded through the United States Agency for International Development (USAID).

• [6] From 2023 the company has experienced cash flow issues resulting in underpayments of Mr Augustin's wages and other entitlements. Mr Augustin explains that he was in discussions seeking to have those underpayments remedied but with no success. His salary was renegotiated in October 2024 to $110,00 per annum. The dispute is over whether that figure was to be applied as a pro rata amount based on a full time salary in the same way that his salary had been prorated previously due to his part time workload.

• [7] AgUnity is a small employer. At the beginning of 2024 it employed 7 full time employees and 2 part time employees. 12 Months later, when Mr Augustin was dismissed, it employed 4 full time and 1 part time employees. The business operates with the assistance of volunteers, contract workers and employees.

• [8] Since July 2023 Mr Augustin has held another full-time position with another employer and maintained both positions until he was dismissed by AgUnity in March 2025. Mr Augustin says he took the second position because payment by AgUnity was irregular. In the second job Mr Augustin was initially paid $96,088 per annum. His salary in the second job increased in July 2024 to $102,562 per annum. AgUnity was not aware that Mr Augustin had taken up a second job.

• [9] Shortly after Mr Augustin's contract was renegotiated in October 2024 an election was held in the United States of America which resulted in a change in administration. The new administration was known to be ill disposed to USAID and the election result led to concern by AgUnity about future funding arrangements both for grants associated with continuing contracts and funding for new contracts. The concern was well founded. In January 2025 the new administration in the United States froze all United States foreign aid and announced a review of USAID. By March 2025 the review was complete, drastic cuts were made to the USAID program. AgUnity provided financial statements that reflect these changes and show that there has been a drastic cut to its revenue. It has responded by reducing the business to a skeleton crew which meets the company's ongoing obligations to assist farm holders.

• [10] In December 2024 attempts were made to speak with Mr Augustin about the company's situation with a view to discussing winding back the work he was doing for the company. Mr Augustin did not respond to these attempts. In December 2024 Mr Augustin sought advice from the Fair Work Ombudsman about his unpaid entitlements. He was advised that one option was for him to commence proceedings in the Queensland magistrates' court. He commenced proceedings in late January 2025. The magistrates court referred the matter to the Queensland Industrial Relations Commission for conciliation.

• [11] A conciliation conference was conducted on 26 February 2025. AgUnity accepted that there were outstanding payments and attempted to resolve the matter by agreeing to an instalment plan. There was a difference between the parties about the quantum of the money owed. By February 2025 AgUnity had substantial accounts receivable and work in progress or completed pending invoicing, however the incoming revenue amount was substantially short of accounts payable and other debts, Mr Augustin was the largest outstanding debt outside of directors and major shareholders. During the negotiations towards settlement AgUnity made it clear that it was not in a position to continue to employ Mr Augustin. The conciliation conference did not resolve the underpayment claim.

• [12] AgUnity sought advice after the conference and was advised that it should terminate Mr Augustin's employment as a consequence of its dire financial position. On 28 February 2025 wrote to Mr Augustin in the following terms:

Subject: Formal Notice of Redundancy & Outstanding Payments

Dear Gabe,

Firstly, I want to say thank you for the past five-plus years of service to the company. You have been a dedicated and loyal team member, and a key part of our technology team. During the most difficult time we have faced, we tried our best to keep you employed, when other staff were let go.

We fully understand your concerns over outstanding payments. With our current financial situation, and based on what we learned from the discussion with the commissioner this week, the only way to reduce our debt to you in the timeframe you require is by reducing our costs further.

It is therefore with deep regret that I inform you that your employment will formally end on March 29th 2025.

In line with your four-week notice period, we do understand this may be a challenging time, so you are not required to work during this period. You will be paid in full for these four weeks.

Outstanding Payments & Repayment Plan

Our records show that we owe you:

• Annual Leave (remaining balance 258.7356 hrs): $15,195.58

• Payment In Lou of Notice (PILON March): $7,400.00

• GROSS: $22,595.58

o TAX $7,204

o NET $15,391.58

• Outstanding Payments: $25,793.35 (at an 11% pay increase from October 2024)

If you agree, we propose to make monthly payments of $6,000.00 until further funds become available at which time the full remaining amount will be repaid. In order to proceed we need to reach agreement on the amount outstanding and ascertain there are no amounts in dispute or other disputes such as superannuation, if agreement is not possible at this time, then it will be resolved by the Queensland Industrial Relations Commission.

This decision was not made lightly, and we are grateful for your contributions to date.

• [13] Mr Augustin filed his application for an unfair dismissal remedy on 5 March 2025.

• [14] Section 385 provides that a person has been unfairly dismissed if; the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy. There is no issue about the first matter. Mr Augustin was dismissed. The other three matters are contested.

• [15] Section 396 of the Act also sets out the matters which I am required to decide before I consider the merits of Mr Augustin's unfair dismissal application. Those include whether the dismissal was not a case of genuine redundancy and whether the Small Business Fair Dismissal Code was followed. I will deal with these matters first.

• [16] Section 389 of the Act defines genuine redundancy as follows:

(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."

• [17] A dismissal will be a case of genuine redundancy if all three requirements in the section have been met. The employer must no longer require the persons job to be done by anyone. The employer must have complied with an obligation to consult in an award or agreement. There must also be no reasonable opportunity to redeploy the employee in the employer's business or an associated business. If all these requirements are met, then the dismissal will be a genuine redundancy. If any is not met, then the dismissal is not a case of genuine redundancy.

• [18] In this matter, to reach the conclusion that there was no genuine redundancy, I only have to consider whether AgUnity complied with an obligation in a modern award to consult about the redundancy. AgUnity contended that there was no relevant modern award applicable to the work. Mr Augustin claimed there was but was unable to specify which. I am satisfied that the work Mr Augustin performed fell within the scope of the Professional Employees Award 2020 (Award). Clause 4.1 of the Award provides that it covers employers throughout Australia with respect to employees included in the classification structure at Attachment A. Attachment A provides:

An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.

• [19] The relevant consultation obligation is found in clause 30 of the Award. It reads:

25.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

25.2 For the purposes of the discussion under clause 25.1(b) , the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

25.3 Clause 25.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

25.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause  25.1(b).

25.5 In clause 25 significant effects , on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

25.6 Where this award makes provision for alteration of any of the matters defined at clause 25.5**,** such alteration is taken not to have significant effect.

• [20] It is clear on the accounts given by Mr Davies that AgUnity did not consult with Mr

Augustin before dismissing him. A decision was made to wind back Mr Augustin's work in November 2024 and attempts were made to meet with Mr Augustin to discuss how this could be done in December 2024. Mr Augustin was not available to meet. The invitations to meet did not indicate the purpose of the meeting sought. Mr Davies said that it was frustrating that Mr Augustin would not meet with him. Mr Augustin's court application to recover underpayments intervened. Following the unsuccessful conciliation in that matter a decision was made to dismiss Mr Augustin, and he was provided with a notice of termination. It follows that AgUnity did not comply with its obligations under clause 25 of the Award. In particular, the requirements in clauses 25.1, 25.2 and 25.4 were not met.

• [21] As AgUnity did not comply with its consultation obligation under the Award its dismissal of Mr Augustin was not a case of genuine redundancy within the meaning of s.389 of the Act and the requirement in s. 385(d) is met.

• [22] AgUnity provided a copy of the Small Business Fair Dismissal Code Checklist which was completed in March 2025. The document includes a question directed to whether the employer complied with any requirement to consult under an Award. Mr Davies ticked yes in response to this question. For the reasons above this response was wrong. In any event, the Small Business Fair Dismissal Code does not capture redundancy situations.1

• [23] Accordingly, the Small Business Fair Dismissal Code did not apply, and the requirement in s. 385(c) is met.

• [24] Having determined that Mr Augustin's dismissal was not a genuine redundancy within the meaning of s.389 of the Act and that it was not consistent with the Small Business Fair Dismissal Code, the next issue is whether the dismissal was harsh, unjust or unreasonable. In determining whether the dismissal was harsh, unjust or unreasonable, I must take into account the matters set out in s.387 of the Act.

Section 387(a) - valid reason related to capacity or conduct

• [25] Mr Augustin was dismissed because AgUnity no longer required the work he performed done by anyone. It was downsizing due to dramatic reductions in revenue. This was a change to the operational requirements of the business. It follows that, in those circumstances, the reason for the dismissal did not relate to Mr Augustin's capacity or conduct, and s 387(a) should be regarded as a neutral matter with respect to the question of whether the dismissal was harsh, unjust or unreasonable.2

• [26] Section 387(b) relates to notification of "that reason", being the reason related to the person's capacity or conduct.

• [27] Because the reason for the termination of Mr Augustin's employment was the operational changes to the business, which is not related to his capacity or conduct, s 387(b) is also neutral factor in relation to the question of whether Mr Augustin's dismissal was harsh, unjust or unreasonable.

• [28] Section 387(c) is also predicated on there being a reason for dismissal related to the capacity or conduct of the employee. It follows that s.387(c) is a neutral factor in relation to the question of whether Mr Augustin's dismissal was harsh, unjust or unreasonable.

• [29] AgUnity did not unreasonably refuse to allow Mr Augustin to have a support person present to assist at any discussions relating to his dismissal. The discussions proposed by AgUnity in December 2024 did not take place. Discussions occurred in the QIRC process and MR Augustin was able to be represented in those discissions. Accordingly, s.387(d) is a neutral factor in relation to the question of whether Mr Augustin's dismissal was harsh, unjust or unreasonable.

Section 387(e) - warning about unsatisfactory performance

• [30] Mr Augustin's dismissal did not relate to unsatisfactory performance. It follows that s 387(e) is also a neutral factor in relation to the question of whether Mr Augustin's dismissal was harsh, unjust or unreasonable.

Section 387(f)&(g) - size of enterprise and dedicated human resource management specialists

• [31] AgUnity is a small employer. It did not have any dedicated human resource management specialists or expertise in its enterprise at the time it decided to dismiss Mr Augustin's employment. It did seek advice associated with its financial position in making the decision. That advice was that it had kept Mr Augustin on too long given the financial position of the business. I am satisfied that this had an impact on the procedures followed in effecting Mr Augustin's dismissal. So much is apparent from the lack of knowledge on the part of AgUnity of the award obligation to consult Mr Augustin. I consider that these factors ss. 387(f) & (g)) weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

• [32] Much of the material provided in these proceedings by Mr Augustin went to allegations that he was dismissed in February 2025 after making the court application over the failure to pay entitlements. Mr Augustin alleges that AgUnity has contravened a number of provisions of the General Protection provision in Part 3-1 of the Act. He also alleges that AgUnity had entered into sham contracts. He initially sought compensation and penalties associated with those alleged contraventions. He also initially sought order that he be paid his unpaid entitlements. During the conference he accepted that these matters were outside the scope of his unfair dismissal application.

• [33] The Commission may find that on the material before it an employer has, in the circumstances surrounding a dismissal contravened the Act. Such a finding would not be binding, as ultimately such matters are to be determined by a court, but it would be relevant to the question of whether a dismissal is harsh, unjust or unreasonable. I was not invited to make such a finding in this case and on the material before me I would not. Consequently, I do not consider those issues as relevant to Mr Augustin's unfair dismissal case.

• [34] During the conference Mr Davies for AgUnity expressed a number of times his desire to address the underpayments issue. He had proposed a repayment that was rejected by Mr Augustin without a counteroffer being made. He also expressed his frustration at the inflexible approach being taken by Mr Augustin. His was also concerned that Mr Augustin refused to meet and when he did meet, he would not accept the explanations provided by Mr Augustin about various matters that were raised. This included issues that should have been uncontroversial such as the number of employees engaged by AgUnity.

• [35] Mr Augustin was also unwilling to discuss a means by which the various disputes he had raised could be resolved. I find that Mr Augustin has taken an inflexible approach about these matters. His demeanour in the proceedings suggested that he wished to pursue all perceived rights against the company without compromise. One of those rights being the current proceedings. He may be entitled to take such an approach but as a matter of fairness between the parties I consider his attitude to weigh against a finding that his dismissal was harsh, unjust, or unreasonable.

• [36] I consider the following matters are relevant to the question of whether the dismissal was harsh unjust or unreasonable:

a) Mr Augustin's reluctance to meet with AgUnity when requested to do so in December 2024.

b) Mr Augustin's familiarity with the business which would have made him aware of the financial problems the business was experiencing.

c) Mr Augustin took on another full-time position in July 2023 without informing AgUnity.

d) While AgUnity did not consult as required by the Award it was hampered in doing so by Mr Augustin's inflexibility and refusal to meet when requested to do so.

• [37] All these factors weigh in favour of the dismissal not being harsh unjust or unreasonable.

Conclusion - harsh, unjust and/or unreasonable dismissal

• [38] After considering each of the matters specified in s.387 of the Act, I find that the dismissal of Mr Augustin was not harsh, unjust or unreasonable. AgUnity had a valid reason to make Mr Augustin's position redundant, its failure to comply with its consultation obligations under the Award did not have a substantial impact on the inevitable outcome that Mr Augustin's position was redundant, and he was accordingly retrenched. While in the ordinary course a failure to consult about redundancy would render a dismissal by retrenchment unfair in this case there were extenuating circumstances. Mr Augustin's refusal to meet, his approach of ignoring communications from AgUnity and commencing another full time job without informing AgUnity all tell against a finding that he was treated unfairly. In circumstances such as these the Commission should take the fair go all round approach referred in the objects of Part 3-2.

• [39] Having found that Mr Augustin was protected from unfair dismissal, but his dismissal was not harsh, unjust, or unreasonable, it is not necessary to consider what, if any, remedy should be granted.

• [40] Mr Augustin's application for an unfair dismissal remedy is dismissed.

Mr D. Davies appearing on behalf of AgUnity Pty Ltd

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