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[2009] FWA 1676
defendant. Application for an unfair-dismissal remedy dismissed.
The decision found that Mr M's regular casual job ended when LD told him there was no work for him until further notice. It accepted that the housing provider needed less labour, that this changed LD's operational requirements, and that there was no reasonable alternative placement available to Mr M. It treated consultation as sufficient in the circumstances and found a genuine redundancy. It did not decide whether LD was a small-business employer or whether the Small Business Fair Dismissal Code applied. The decision's note records an appeal and identifies a later Full Bench decision, but its result cannot be explained from the text provided.
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2,401 words · generated 01/10/2026
This is a Fair Work Australia decision, not a court judgment. Senior Deputy President O’Callaghan decided Mr M’s application for an unfair-dismissal remedy against LD Pty Ltd on 22 December 2009. The decision was made under the Fair Work Act 2009 and concerned the meaning of dismissal, genuine redundancy and the initial matters that had to be considered before the merits of an unfair-dismissal application.
2 cited instruments linked from this judgment.
Mr M began working for LD, a labour-hire company, as a casual employee in June 2007. He worked at a manufacturing company’s site and generally averaged 35 hours each week. After an occupational health and safety incident in June 2008, he was told he could not work at that site for at least three months. LD then transferred him to work under its housing-provider contract, which involved cleaning and repairs at residential properties ([6]–[8]).
The decision records some disagreement about events in 2009. Mr M said his hours were halved around the time his leading hand left, but LD disputed this and the decision found no definitive evidence on that point ([9]). On 5 August 2009, LD moved an existing employee from other housing-provider work into Mr M’s work function and appointed her as a leading hand ([10]).
On 13 August 2009, LD told Mr M there was no work available for him and that he would be called when next needed. He did some work for LD on irregular occasions in August and September ([11]–[12]). Mr M applied for an unfair-dismissal remedy on 27 August 2009 ([2]). After settlement efforts did not resolve the matter, the parties gave sworn evidence and had the opportunity to question each other at a formal conference in Whyalla ([3]–[4]).
LD argued that Mr M had not been dismissed. In the alternative, the decision understood LD to argue that the Small Business Fair Dismissal Code applied and that any termination was a genuine redundancy ([13]). The decision first addressed whether Mr M had been dismissed. It then considered genuine redundancy. It did not make a final finding about whether LD was a small-business employer or whether the Code applied ([28]–[29]).
The decision dismissed Mr M’s application. Its note records that an appeal was lodged and refers readers to a Full Bench decision dated 10 February 2010, [2010] FWAFB 979. The text of that later decision is not included in the material provided, so this analysis cannot state what the Full Bench decided or how it treated the reasoning below.
The first question was whether there had been a dismissal within s 386. The decision accepted that Mr M had been a regular casual employee: he generally worked about 35 hours per week and had a reasonable expectation of continuing to do so ([8], [20]). It considered the change on 13 August more than a missed shift. Mr M was told he was not required to work until further notice. The decision treated that as ending the regular employment relationship that had existed since 2007 ([21]).
The subsequent irregular shifts did not change that conclusion. The decision considered that later work took place on a completely different basis from the earlier regular work, under a different contractual basis. Even if the change were characterised as a move from regular to irregular casual work, the decision considered the change sufficiently substantial to amount to termination ([22]). Its conclusion was that LD had terminated the employment relationship ([23]).
The next question was whether the termination was a genuine redundancy under s 389. The decision quoted the statutory test: the employer must no longer require the person's job to be performed by anyone because of changes in the operational requirements of the enterprise, and it must comply with applicable award or enterprise-agreement consultation obligations. A dismissal is not a genuine redundancy if reasonable redeployment was available within the employer’s enterprise or an associated entity’s enterprise ([34]).
On operational requirements, LD’s evidence was that the housing provider’s daily demand for labour had fallen shortly before 13 August. LD said that this meant fewer employees were needed. The decision recorded evidence that staffing for that work had fallen from five employees across the working week to two and a half ([32]). Mr M did not dispute that demand had fallen, although he disputed aspects of how work was allocated and considered other employees should have been dismissed first ([33]). The decision accepted the fall in demand as a changed operational requirement and was not persuaded that Mr M’s dismissal resulted from the appointment of the replacement leading hand ([36]).
Consultation was considered despite the uncertainty over which award applied. The decision stated that no modern award regulated Mr M’s employment and that neither party had identified a particular award or relevant enterprise-agreement consultation obligations. As a precaution, it considered consultation requirements in the Metal Industry (South Australia) Award, which it regarded as the most likely award to have applied. It found that LD informed Mr M of the downturn shortly after it became clear, and considered any consultation obligation met “in a somewhat rudimentary fashion” ([37]). That is the decision’s assessment on these facts, not a general statement about what consultation requires in other cases.
Redeployment was the other key part of the statutory test. Mr M said alternative work was available at the manufacturing site. LD’s evidence was that it could not put him back there without the client’s approval, and it had been advised months earlier that he was not considered suitable for work there at that time ([32], [38]). The decision accepted that LD had only two clients and that the downturn in housing-provider work left no alternative employment if the manufacturing-site work was unavailable to Mr M ([38]). It therefore found genuine redundancy and dismissed the application ([39]).
This decision sets out and applies the statutory framework as it stood in the Fair Work Act 2009 at the time. The decision itself does not provide a history of the law or compare earlier and later legal regimes. Any description of a broader “before and after” change would go beyond the material supplied.
For the issue of whether Mr M had been dismissed, the decision quoted s 386. Under that provision, dismissal included termination of employment on the employer’s initiative. It also quoted s 384(2)(a), which addressed when service as a casual employee counted towards an employee’s period of employment: casual service counted where it was regular and systematic and the employee had a reasonable expectation of continuing employment on that basis ([17], [19]). Applying those provisions, the decision treated Mr M’s regular 35-hour working pattern and the instruction that he was not required until further notice as establishing termination of the regular employment relationship ([20]–[22]).
For genuine redundancy, the decision quoted s 389. The test was not satisfied simply because an employer described a termination as a redundancy. The decision addressed the statutory elements in sequence: whether the job was no longer required because of operational changes, whether applicable consultation obligations were met, and whether reasonable redeployment was available ([34]–[38]). The specific conclusion depended on the evidence of reduced client demand, the limited client base, and the absence of approval for Mr M’s return to the manufacturing site.
The decision also quoted s 396, which lists matters to be considered before the merits, including whether the application was timely, whether the person was protected from unfair dismissal, whether the Small Business Fair Dismissal Code was consistent with the dismissal, and whether the dismissal was a genuine redundancy ([14]). Although LD’s employee-count calculation was challenged, the decision did not decide the Code issue because it considered that decision unnecessary to its conclusion on genuine redundancy ([24]–[29], [35]).
The decision’s own note signals an appeal, but the appeal judgment is not reproduced here. It is therefore not possible, from this source alone, to describe any later change, confirmation or qualification of the reasoning.
At [21], the decision says: “I am unable to regard this as anything other than the termination of the regular employment relationship which had existed since 2007.” In plain English, the decision treated the instruction not to work until further notice as ending the regular arrangement, not merely cancelling a shift.
At [22], it adds that even if LD’s action were viewed as changing Mr M from regular to irregular casual work, the change was so substantial that it amounted to termination. This explains why the occasional later shifts did not, in the decision’s reasoning, preserve the earlier regular relationship.
At [36], the decision says the reduced demand “constitutes a changed operational requirement and meets the requirements for a genuine redundancy.” The finding turned on the accepted reduction in work and the resulting need for fewer employees, rather than on the employer’s label alone.
At [37], the decision describes consultation as having been met “in a somewhat rudimentary fashion.” The qualifier matters. The decision reached that view because it found LD told Mr M of the downturn shortly after it became clear, after considering the likely relevant award as a precaution. It did not identify a modern award that it found actually regulated Mr M’s employment.
At [38], the decision accepts that Mr M could not be returned to the manufacturing site without the client’s approval and that LD had only two clients. In practical terms, those findings were central to why the decision did not find another reasonable placement available.
Finally, [39] states the result: the termination reflected a genuine redundancy, so the application was dismissed. The decision’s conclusion followed from its findings on the statutory elements, not from a separate finding about whether Mr M should have been selected before another employee.
The decision is most directly relevant to a fact pattern involving a casual employee who has worked regularly and systematically over a sustained period, with an expectation of continued regular work, but is then told that no further work is available until further notice. It shows how a tribunal may distinguish that situation from the cancellation of a single casual shift. The decision’s reasoning also emphasises the nature of any work offered afterwards: here, later work was irregular and on a different basis ([20]–[22]).
It is also relevant where an employer says work has ceased or reduced because a client requires fewer labour-hire workers. The decision considered the actual reduction in demand and staffing evidence when deciding whether the job was no longer required because of operational changes ([32], [36]). A different factual record about demand, staffing needs or the reason for the change could affect that assessment; the decision does not establish that every reduction in client work amounts to genuine redundancy.
The redeployment analysis may be relevant where a labour-hire company has a small number of clients and placement depends on client approval. In this matter, the decision accepted that Mr M could not return to the manufacturing site without approval and that the remaining client’s demand had declined ([38]). The decision does not establish that client refusal will always answer the statutory redeployment question. It records a fact-specific conclusion about LD’s enterprise and the evidence before the decision-maker.
Finally, the consultation discussion is relevant where no modern award or agreement obligation has been identified but a potentially applicable instrument is considered as a precaution. The decision treated the information given shortly after the downturn became clear as sufficient in the circumstances ([37]). It should not be read as setting out a general minimum consultation process, because the decision described the consultation as rudimentary and addressed the specific facts and instrument it considered.
The supplied decision contains a note that an appeal under s 604 was lodged and identifies a Full Bench decision dated 10 February 2010, [2010] FWAFB 979. That note establishes that an appeal was lodged and directs the reader to the later decision for the appeal result. It does not itself explain the Full Bench’s reasoning or outcome.
The Full Bench decision is not included in the supplied text. Accordingly, this source does not establish whether the original decision was affirmed, varied or reversed, nor whether the Full Bench adopted, distinguished or rejected any part of the reasoning. No other later decisions or treatment are provided. A reliable account of subsequent treatment would require the text of the identified Full Bench decision and any later decisions that cite it.
For research purposes, it is important to separate the original decision’s reasoning from the procedural note. The analysis above describes what Senior Deputy President O’Callaghan decided at first instance. It does not present that reasoning as the final appellate position.
The first unresolved issue in the supplied material is the result and reasoning of the appeal identified in the note. Without [2010] FWAFB 979, the later status of the first-instance decision cannot be confirmed.
The decision also expressly left the Small Business Fair Dismissal Code question unresolved. LD supplied a calculation of 14.17 full-time-equivalent employees, but Mr M disputed the information and the decision was not satisfied that the calculation conclusively addressed the legislative requirements ([27]–[29]). The decision found it unnecessary to resolve the issue after applying the genuine-redundancy test.
The decision’s account of consultation leaves some factual and legal detail open. It says no modern award regulated Mr M’s employment, but considered the Metal Industry (South Australia) Award out of caution and found that any consultation obligation had been met in a rudimentary fashion ([37]). The text does not set out a detailed consultation process or identify a specific enterprise-agreement obligation.
There was also a dispute about whether Mr M’s hours had already been reduced before 13 August, and about the effect of the replacement leading hand and the retention of other employees ([9], [33]). The decision found no definitive evidence supporting the claimed earlier halving of hours and was not persuaded that the leading-hand appointment caused the dismissal ([9], [36]). It stated that there was no capacity to review whether Mr M should have been selected for redundancy ahead of others ([37]). The source does not provide a broader explanation of that statement.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Note: An appeal pursuant to s.604 (C2009/11407) was lodged against this decision - refer to Full Bench decision dated 10 February 2010 [ [2010] FWAFB 979] for result of appeal.
s.394 - Application for unfair dismissal remedy
termination of employment - jurisdiction - genuine redundancy.
[1] The names of the parties to this matter have not been disclosed in this decision consistent with the requirements of section 398 of the Fair Work Act 2009 (the Act).
[2] On 27 August 2009 Mr M lodged an application pursuant to section 394 of the Act, through which he sought relief with respect to the termination of his employment with LD Pty Ltd (LD).
[3] Mr M's application was unable to be settled through conciliation and was referred to me for determination on 17 September 2009. It was the subject of a further conference on 1 October 2009. This conference was also directed at achieving an agreed settlement. When this was not possible, the parties agreed that the matter should proceed to a more formal conference before me which would give both parties the opportunity to argue their respective positions.
[4] This more formal conference was convened in Whyalla on 26 November 2009. The conference proceedings were recorded and both parties were advised that a copy of the sound file was available to them on request. Both parties gave sworn evidence and had the opportunity to question each other consistent with normal cross examination practices. Prior to the commencement of the proceedings, both parties confirmed their agreement to this approach. Accordingly, I am satisfied that the approach adopted was consistent with the requirements of section 398 of the Act.
[5] The background to the application is set out below.
[6] LD operate as a labour hire company. It provides labour in Whyalla under contracts to a housing provider and significant manufacturing company. Mr M was initially engaged on a casual basis in June 2007. He undertook work at the manufacturing company site and generally worked on a regular basis, averaging 35 hours per week. Following an incident in June 2008 when Mr M breached the manufacturing company's occupational health and safety requirements, Mr M was told that he could not work again on that manufacturing company facility for at least three months.
[7] LD subsequently transferred Mr M to work under its housing provider contract. To the extent that it is relevant, I understand this work involved a range of cleaning and repair activities on residential properties. Whilst there is some suggestion that this changed arrangement may have involved a break in Mr M's employment of some weeks, there is no evidence before me in this respect.
[8] Mr M worked on the same regular casual basis. There is no dispute that he worked an average of 35 hours per week on the basis of daily or weekly advice of future working requirements.
[9] The Leading Hand to whom Mr M reported left LD in June 2009. Around this time, Mr M had a disagreement with another employee. While Mr M asserts that his work hours were halved around this time, there is no definitive evidence to support this and it is disputed by LD.
[10] On 5 August 2009, LD transferred an existing employee from another housing provider work to Mr M's work function and appointed her as a leading hand.
[11] On 13 August 2009 LD elected not to allocate work to Mr M on the basis of a decline in the work available from the housing provider. Mr K, a Director of LD advised Mr M that he was not required to work and would be called into work when he was next needed.
[12] Mr M subsequently worked for LD on a number of irregular occasions in August and September 2009.
[13] LD asserts that Mr M is not protected from unfair dismissal in that he was not dismissed. In the alternative, I have taken it that LD asserts that the Small Business Fair Dismissal Code has application, and that any termination of Mr M's employment was a genuine redundancy.
"396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy."
[15] The application was made within the period required in section 394(2).
[16] Whilst it may be the case that Mr M was protected from unfair dismissal, if his employment was not terminated at the initiative of LD, he is not able to make an application.
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."
[18] Consequently, as an initial issue, I have considered whether the termination of Mr M's employment was at the initiative of the employer.
(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
[20] I have concluded that Mr M was, until 13 August 2009, a regular casual employee. He generally worked 35 hours each week and had a reasonable expectation of continuing to do so.
[21] On the material before me, I have concluded that Mr M's regular casual employment was terminated on 13 August 2009 when he was advised, not merely that he was not required to work on that day, but was not required to work until further notice. I am unable to regard this as anything other than the termination of the regular employment relationship which had existed since 2007.
[22] Whilst I do not consider the advice given to Mr M on 13 August 2009 constituted advice of a demotion from regular to irregular casual employment, even if this was the case, the change was of such a magnitude that it constituted a termination of employment. Mr M's subsequent irregular work was on a completely different basis to his previous regular employment and was undertaken under an entirely different contractual basis.
[23] I have therefore concluded that Mr M's employment relationship was terminated by the employer. However, before considering the merits of this application I am required to return to a consideration of the initial matters listed in section 396 of the Act. One of the initial matters I am required to consider is whether the dismissal was consistent with the Small Business Fair Dismissal Code.
[24] The means of determining whether LD was a small-business employer are set out in Schedule 12A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Given the conclusion I have reached later in this decision, it is not necessary that I detail these provisions.
[25] Ms K performs a range of administrative functions within LD. Her advice to me was that she had calculated the full time equivalent number of employees on the basis of advice to her by the Fair Work Australia Advisory Service. Ms K subsequently provided advice of her calculation in this respect. I was not satisfied that these calculations reflected the legislative requirements and subsequently issued directions in the following relevant terms:
"I enclose a copy of Schedule 12A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, for your information. I will rely on the methodology set out in this Schedule to reach a conclusion about whether LD is a small-business employer.
• a list of each person employed at any time during the period 16 July 2009 to 13 August 2009, inclusive,
• whether each of these employees was a casual or weekly hire employee,
• for each weekly hire employee, the name of the award or agreement which regulates that employment,
• for casual employees, the total number of hours worked over that time,
• whether any of the employees was on leave over this time and, if so, the nature and the duration of that leave, and
[26] Subsequent to the conference in Whyalla, LD was required to provide Mr M with a copy of this information and Mr M had until 15 December 2009 to provide written comments with respect to it.
[27] I have received further information from LD. In this advice Ms Kneebone concluded that LD had 14.17 full time equivalent employees. In response to this further information, Mr M has stated:
1. the information was written down and could have human error of wilful deceit within them. both of which I believe are relevant.
2. The information supplied is not evidence, and would not be sufficient for any court appearance, so should not be accepted here.
3. two errors already committed by them are: (one of these could have been wilful deceit)
A. not following the correct instructions regarding what dates to count the 4 weeks casual hours from.
B. not adding them up correctly (storms has an extra 8 hours added on, likely from the above worker in the document).
[28] Given this objection, and my concern that the calculations done by Ms K may not have fully covered all of the LD employees, I am not in a position to conclusively determine that the Small Business Fair Dismissal Code has application.
[29] In the circumstances of this matter, I do not consider it essential that I do so. Both the Small-Business Fair Dismissal Code and section 389 of the Act refer to a genuine redundancy.
A person has been unfairly dismissed if FWA is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(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."
[31] Consequently, if the termination of Mr M's employment was a case of a genuine redundancy, I am unable to find that he has been unfairly dismissed.
[32] Mr K's evidence was that just prior to 13 August 2009 there was a significant reduction in the daily demand for labour from the housing authority. Mr K acknowledged that this reduction in daily demand occurred soon after the replacement Leading Hand was appointed to this work area. Mr K's advice was that the reduction in daily work demand from the housing provider was the reason why Mr M was advised that there was no work available. Mr K confirmed that this situation was compounded by the appointment of a replacement leading hand. Ms K advised that, prior to 13 August 2009, LD had five employees engaged on the housing authority work over five days of the week, but now only had 2 � employees engaged on work over five days of the week. Further, Mr K advised that he considered redeployment opportunities for Mr M, but was unable to place Mr M back with the manufacturing company because he did not have approval to do so from that company.
[33] Mr. M did not dispute the reduction in demand from the housing provider. Mr M's position was that there were other employees engaged after him who were kept on when he thought these employees should have been dismissed in advance of him. Mr M asserted that the reduction in hours reflected modified work duties offered to one employee. Further, he asserted that he had been advised that alternative employment was available to him at the manufacturing company facility.
[34] Whilst the Small Business Fair Dismissal Code requests information about whether an employee was dismissed because of a genuine redundancy, it does not specifically define a genuine redundancy. However, this concept is defined in section 389 in the following terms:
(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."
[35] Consequently, irrespective of whether the Small Business Fair Dismissal Code has application, I have applied this same definition of genuine redundancy.
[36] On the information before me I am satisfied that LD no longer required the same number of staff on its housing provider work as a result of the reduced demand on the part of that housing authority. This constitutes a changed operational requirement and meets the requirements for a genuine redundancy. I am not persuaded that Mr M was dismissed because of the appointment of a replacement leading hand.
[37] Consistent with section 389(1)(b) there is no modern award that regulated Mr M's employment. Neither party has referred me to a particular award or to relevant enterprise agreement obligations relating to consultation. From an abundance of caution I have considered the consultation requirements set out in the Metal Industry (South Australia) Award which is a Notional Preserving State Award that I consider was most likely to have regulated Mr M's employment. Whilst Mr M initiated the telephone call in which he was advised of the downturn in work, the fact is that LD advised Mr M of this position shortly after it became clear. Consequently, I am satisfied that any award consultation obligation has, in a somewhat rudimentary fashion, been met. There is no capacity for a review of whether Mr. M should have been selected for redundancy in advance of other persons.
[38] I accept the advice provided to me by Mr K, to the effect that he had been advised some three months prior to August 2009 that Mr M was not considered suitable at that time for work at the manufacturing company facility and that, absent advice of a changed position in this regard, LD was unable to place Mr M on that work site. Ms K's evidence established that LD had only these two clients and that the downturn in housing provider work meant that unless there was a capacity to allocate Mr M to the manufacturing company work, no alternative employment could be offered.
[39] For these reasons I have concluded that the termination of Mr M's employment reflected a genuine redundancy. As a consequence, I am not able to find that Mr M has been unfairly dismissed and his application must be dismissed. An Order [PR991799] reflecting this decision will be issued.
Printed by authority of the Commonwealth Government Printer
Mr M
LD Pty Ltd - re Termination of employment - jurisdiction - genuine redundancy [2009] FWA 1676
Application for an unfair-dismissal remedy dismissed.