Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - no dismissal due to genuine redundancy - application dismissed

• [1] On 1 January 2025, Mr Kauri Taumaunu made an application to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Taumaunu alleges that he was unfairly dismissed from his employment with United Personnel Traffic Pty Ltd (United) on 13 December 2024.

• [2] United opposed the application, raising a jurisdictional objection on the grounds that the dismissal was a case of genuine redundancy. I issued directions on 14 February 2024, for the parties to file their material with respect to the jurisdictional objection. As both parties were self-represented, I decided it was appropriate to deal with the matter by way of Determinative Conference. The Conference was held on 7 April 2024. Mr Taumaunu represented himself and Mr Tihema Miller, Operations Manager, represented United.

• [3] For the reasons set out below, I am satisfied Mr Taumaunu's dismissal is a genuine redundancy. Mr Taumaunu's dismissal therefore cannot be an unfair dismissal and his claim cannot continue. I have therefore ordered that Mr Taumaunu's application be dismissed.

• [4] Noting an obvious typographical error in United's submissions (1 September 2025), I accept that Mr Taumaunu commenced employment with United on or around 28 November 2022.

• [5] Mr Taumaunu was a permanent employee and his employment was covered by the United Personnel PTY LTD CFMEU Union Collective Agreement 2023 - 2027 (the Agreement).

• [6] Mr Taumaunu was initially employed as a casual employee however, at some point in 2024, he became a permanent employee, pursuant to clause 24.8 of the Agreement, which provides that employees who have been engaged on a regular and systematic basis for a period in excess of 6 weeks, will have their employment converted to permanent employment. At the time of Mr Taumaunu's dismissal, United employed 13 permanent employees and 32 casual employees.[1]

• [7] On 19 November 2024, the following SMS message was sent to all of United's permanent employees:[2]

I hope this message finds you well. I want to take a moment to address an important update regarding employment at United.

Due to current capacity constraints, from today we are unable to maintain all full-time positions at this time. As a result, we are implementing options for affected employees:

1. Reversion to Casual Employment: Employees may choose to revert to casual status effective immediately.
2. Redundancy Option: Alternatively, if you prefer, we can proceed with making your position redundant. In this case, you will receive a payout of all entitlements, after which you will still have the option to revert to casual employment.

We understand that this may be a challenging transition, and we are here to support you through this process. Please don't hesitate to reach out if you have any questions or need further clarification.

• [8] It is Mr Taumaunu's evidence that upon receiving the SMS he called Mr Miller, who advised him that "it was nothing to worry about" and stated words the effect that "everyone was receiving the same notice".

• [9] It is common ground that no further discussions were held between the parties relating to the potential redundancies, other than a series of exchanges regarding the payment of a parking fine that had been issued to Mr Taumaunu whilst on shift. Mr Taumaunu recalls Mr Miller suggesting that if he pursued the parking fine, he would be taken off night shift and made redundant. Mr Miller disagreed with this proposition, stating that he recalled the discussion about the parking fine, but rejected the notion that he had threatened Mr Taumaunu's job. Mr Miller further suggested that Mr Taumaunu's time sheets for the period would also show that no such action was taken.

• [10] On 10 December 2024, Mr Miller sent an email message, containing the same content as the 19 November 2024 SMS to Mr Taumaunu and the other permanent employees. Mr Taumaunu states that he felt "blindsided" by the email as it was sent to his personal email address rather than being discussed with him on site.

• [11] On 12 December 2024, Mr Taumaunu made contact with the company union delegate, who he says informed him that she was unaware that the emails had been sent (as she had not checked her inbox), but "confirmed to me her belief that the redundancy was genuine and shortage of work meant everyone would be going back to casual employment".[3]

• [12] On 13 December 2024, Mr Taumaunu called Mr Miller who confirmed that his permanent position was being made redundant, but that he could remain employed as a casual employee if he wished. It is Mr Taumaunu's evidence that, as he was due to commence annual leave from 16 December 2024 and would be overseas until 12 January 2025, he felt pressured to accept the redundancy, out of the two options presented to him.

• [13] Mr Taumaunu suggests that there was no consultation or discussion about any options that would have allowed him to remain employed as a permanent employee, the only option he says, was to revert to a casual position. Mr Taumaunu argues that due to the insecure nature of casual employment this was not a viable option for him. Consequently, later that day, Mr Taumaunu replied to Mr Miller's 10 December 2024 email as follows:[4]

I understand and will be accepting redundancy effective immediately.

I would like a letter of termination to allow me to take my BERT out please.

• [14] Mr Taumaunu filed submissions in the Commission on 14 March 2025. Much of the material filed by Mr Taumaunu relates to the process, or lack thereof, undertaken by United when making his position redundant. Mr Taumaunu outlines various provisions of the Agreement that he feels were not followed and argues that there was no consultation or discussion about options to keep his permanent position, and that the only option he was offered was to revert to casual employment. Noting the lack of security associated with casual employment, this option was not acceptable to him and as such, he felt his only option was to accept the redundancy.

• [15] Mr Taumaunu notes that a dismissal is not a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the employee within the employer's enterprise or a related entity. During the conference, Mr Taumaunu raised additional concerns regarding the number of casual employees still employed by United, many of whom he understands are working regular and systematic hours every week. Mr Taumaunu suggested that this demonstrates that there is still a lot of work available and that his role was still required. Essentially, as I understand it, he is of the view that had the hours provided to the casual employees been reduced, his permanent role could have remained.

• [16] Mr Taumaunu raises a range of concerns regarding the notification process, particularly to the Building Employees Redundancy Trust (BERT) and Qleave, as well as issues relating to unpaid wages and entitlements. All of Mr Taumaunu's submissions have taken into consideration.

• [17] United's filed material consisted of their initial response provided in their Form F3 dated 6 February 2025, which they subsequently updated on 31 March 2025 and included screenshots of text messages. During the conference, Mr Miller provided evidence of what he described as a downturn in business, that had commenced in the lead up to the State election in October 2024, and continued after this time due to uncertainty surrounding several large projects. Mr Miller suggested that this downturn meant he did not have certainty that he had the work required to keep his permanent employees engaged full time.

• [18] I do note that there appears to be a minor inconsistency regarding Mr Miller's evidence and his updated Form F3. Specifically, it was Mr Miller's evidence that after receiving the 10 December 2024 email, eight or ten of the ten permanent employees opted to revert to casual status and two, including Mr Taumaunu, took the option of redundancy. However, the updated Form F3 states there were 13 permanent employees and "that's when the offer went out to the 10 full time employees to convert back to casual or accept a redundancy due to a shortage of work". I note the 13 employees provided in the updated Form F3 do not correlate with Mr Miller's evidence where he thinks either 8 or 10 employees went to casual - with 2 employees choosing redundancy. Either there are 13 employees with 10 reverting to casual, meaning Mr Miller in his evidence has not accounted for 1 employee; or there are 10 employees with 8 reverting to casual, which aligns with Mr Taumaunu and one other employee choosing redundancy. In any event, I note that majority of employees chose to revert to being casual.

• [19] In response to Mr Taumaunu's suggestion that there was still plenty of work, Mr Miller explained that due to the nature of the industry, there are some clients who request certain employees. Further, he explained that the available work was now also being shared with the previous permanent employees who were now receiving casual hours. When asked about the hours such employees were receiving, Mr Miller suggested that none were receiving full time hours, and that their hours fluctuated, but they were, on average, only receiving casual shifts on between three and four days each week.

• [20] Mr Miller also noted his view that the redundancy had been in compliance with the requirements of the Agreement, noting he has consulted with the Union as required and that they had provided him with the relevant wording for the SMS and email he had sent.

• [21] The Act establishes that a person cannot be unfairly dismissed if the dismissal was a

case of genuine redundancy. This position arises from the terms of s. 385(d) of the

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

• [22] Section 389 of the Act provides the meaning of genuine redundancy:

(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."

• [23] Section 389 identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy:

• Was the role no longer required due to operational requirements;
• Have the consultation requirements of the relevant modern award or enterprise agreement been complied with; and
• Was it reasonable for the employee to be redeployed.

• [24] Each of these elements are considered below.

Was the role no longer required due to operational requirements?

• [25] Section 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. I accept Mr Miller's evidence that due to a downturn in work, he did not have sufficient work to maintain the permanent roles. Whilst I acknowledge Mr Taumaunu's submissions regarding the casual employees still engaged, I also note Mr Miller's evidence that the permanent employees who did take the option to revert to casual employment, have received less than full time hours since doing so.

• [26] It is also relevant that the Agreement requires that should a casual employee's hours become regular and systematic for six weeks or more, they must be converted to permanent employment. That the existing casual employees had not been converted in these circumstances, adds weight to Mr Miller's contention that the work they were performing was neither regular or systematic.

• [27] Having considered the evidence and submissions of the parties, I accept that the nature of the work, including particular client requests, and the irregularity of work available meant that it was not reasonable to expect Mr Miller could simply have reduced the number of casual employees to keep the permanent employees engaged.

• [28] In these circumstances, Mr Taumaunu is correct in his assertion that the functions of the job remained, however, a job involves 'a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee'.[5] Where there has been a reorganisation or redistribution of duties, in this case the redistribution of functions of the permanent roles to casual, the question is whether the employee ‑ - again the permanent employee - has 'any duties left to discharge' once those duties have been redistributed.[6] If there is no longer any function or duty to be performed by that person, their position becomes redundant.[7]

• [29] The relevant authorities confirm that an employee may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees.[8] The test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[9]

• [30] Essentially, the test is whether the employee's 'job' is no longer required to be performed, rather than the employee's 'duties'.[10] Having found that Mr Miller had made the operational decision that he no longer required the permanent roles, it follows that the permanent roles became redundant, even though the duties have been redistributed to casual employees.

• [31] Having considered all of the circumstances of this matter, I accept that United had formed the view that they did not have sufficient work to maintain their permanent employees and further that they determined that the functions previously performed by the permanent employees would now be performed by causals.

• [32] I am therefore satisfied that the first element in s.389 is satisfied insofar as United has decided that it no longer required Mr Taumaunu's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

Has United complied with its obligations to consult?

• [33] The requirements of 398(1)(b) do not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.[11] The Agreement provides the following consultation provision relevant to situations of redundancy:

42.1 The Employer will consult with the Union prior to making any decision to terminate make redundant or any other form of cancelling the employment contract for any Employee.

42.2 Employment may be terminated by the Employer due to performance/general misconduct, serious and willful misconduct, or Redundancy."

10.3 If the Employer is considering making a decision, and prior to the decision being made, to introduce a major workplace change that is likely to have a Significant Effect on a number of Employees, the Employer must notify those Employee(s) and the Union.

10.4 As soon as practicable and prior to implementation, the Employer must discuss with the Employees and the Union the introduction of the change; and the effect the change is likely to have on the employees. The Employer must discuss measures to avert or mitigate the adverse effect of the change on the Employees.

10.5 For the purposes of the discussion the Employer will provide the Employees, the Union and/or their nominated representative/s in writing:

(a) All relevant information about the change including the nature of the change proposed

(b) Information about the expected effects of the change on the Employees; and

(c) Any other matters likely to affect the Employees.

10.6 However, the Employer is not required to disclose confidential or commercially sensitive information.

10.7 The Employer must give prompt and genuine consideration to matters raised about the major change by the Employees and the Union.

10.8 "Significant Effect" under clause 10.3 above includes termination of employment (including redundancy), major changes in the composition, operation or size of the Employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; changes to safety and/or management systems, any changes to employment practices that result in privacy concerns for employees such as implementation of electronic inductions and/or access systems; the need for retraining or transfer of Employees to other work areas or locations and the restructuring of jobs."

• [34] There are two elements to the consultation requirements in the Agreement. The first is that United was required to consult with the Union, prior to making any final decision to make an employee redundant. In the absence of any evidence to the contrary, I accept Mr Miller's evidence that he consulted with the Union and that the Union has provided him with the relevant wording for both the November and December communications.

• [35] The second element is United's requirement to consult before making any decisions to make major workplace change. The requirements of clause 10 are twofold. Firstly, United are required to consult with the Union and secondly, they are required to discuss the change with the relevant employee. Clause 10.5 further provides that they are to provide employees with written advice regarding the nature of the change proposed. Information about the expected effects of the change on the employees, and any other matters likely to affect the employees.

• [36] It is uncontroversial that Mr Taumaunu and his colleagues received two separate communications from United advising that due to a downturn in business, redundancies would be necessary. As noted above, these communications had been drafted using wording provided by the Union. The communication included information regarding impact on employees and encouraged employees to contact Mr Miller if they had and questions or required any further clarification.

• [37] Mr Taumaunu by his own admission took up this offer following the November communication. After receiving the second communication, Mr Taumaunu consulted with the Union and was, in his own words, "advised that they were aware of the situation and agreed that the redundancies were genuine".

• [38] Viewed objectively, I consider that United met its obligations to consult with the Union prior to making Mr Taumaunu's position redundant. With respect to the requirement to discuss the changes with employees, I note Mr Taumaunu's submissions that he felt "blindsided" when he received the 10 December 2024 email as the issue had not been discussed with him at work.

• [39] Whilst I accept that Mr Taumaunu would have preferred to discuss the situation in person with Mr Miller, the Agreement does not require this. I also note that Mr Miller provided Mr Taumaunu with options for consideration and remained open to further discussion with employees should they require any further clarification. Mr Taumaunu did not take Mr Miller up on this offer before accepting the option of redundancy.

• [40] Considering the above, I find that United complied with the consultation provisions of the Agreement.

Did United explore all reasonable redeployment options?

• [41] Section 398(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed.

• [42] There is no dispute that the communication sent to employees provided two options. Either they could accept their redundancy, in which case they would have access to their BERT payments and receive a payout of all entitlement, or they could remain with United, but revert to casual employment.

• [43] Having accepted that United's decision to make its permanent positions redundant was based on genuine operational requirements, and that there was not sufficient work for their permanent employees, it follows that the only remaining positions that the relevant employees could have been redeployed to were the casual roles. This option was put to Mr Taumaunu, and understandably, he did not find this an acceptable alternative to his permanent role. That the position offered was not acceptable, does not negate the fact that United did offer an option for redeployment and as such, I find that United have complied with their obligation to consider all reasonable options for redeployment.

• [44] The Agreement, at clause 35, requires that United make weekly payments into BERT for the purpose of meeting all of their liabilities with respect to redundancy. United is also required to ensure that an amount equal to the credit balance of the employee's account is paid to the employee when the employee is entitled to that payment pursuant to the terms of the Employee's Redundancy fund. As I understand it, employees who have been made redundant make an application to BERT for the release of their accumulated funds, and that for this to occur, BERT requires the employer to provide a notice of termination.

• [45] It is Mr Taumaunu's evidence that on 23 December 2024, whilst overseas, he received an urgent email from BERT advising that United had not provided the required letter. As I understand it, contact was made with United, and the letter was provided, allowing Mr Taumaunu's BERT entitlement to be paid.

• [46] Whilst I acknowledge Mr Taumaunu's frustration with the delay in providing the required information, I do not accept that this delay is instructive as to the genuineness of the redundancy, particularly noting all entitlements were paid.

• [47] Overall, I am satisfied that Mr Taumaunu's dismissal was a genuine redundancy as defined in s.389. Therefore, Mr Taumaunu's dismissal cannot be an unfair dismissal. As such, his claim cannot continue.

• [48] I therefore order that Mr Taumaunu's application be dismissed.

[2] P.52 to 54 of the DCB - Text Messages 1 to 3.

[3] P.6 of the DCB - Supporting Document.

[4] P.36 of the DCB - Attachment to Form F3.

[5] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].

[8] Dibb v Commissioner of Taxation [2004] FCAFC 126 (13 May 2004) at paras 43-44, [(2004) [2004] FCAFC 126; 136 FCR 388].

[9] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 (Hamberger SDP, 19 February 2010) at para. 27.

[10] Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows [2012] FWA 3126 (Hampton C, 6 July 2012) at paras 73‒75.

[11] Fair Work Bill 2008 Explanatory Memorandum at 1550.

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