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[2026] FWC 890
General information, not legal advice.
Fair Work Commission
2026-03-19
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - dismissal was a case of genuine redundancy - application dismissed
[2] The Respondent opposed the application on the two grounds. The first ground was that Mr Mullaney's dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. A finding in favour of the Respondent on that ground would produce the result that Mr Mullaney cannot have been unfairly dismissed [2] and consequently, the Commission has no power to order remedy.[3] The second ground was that Mr Mullaney's dismissal was not harsh, unjust or unreasonable. A finding in favour of the Respondent on that ground would produce the result that Mr Mullaney cannot have been unfairly dismissed[4] and consequently, the Commission has no power to order remedy.[5]
[3] On 24 February 2026, the application was the subject of a hearing before me. The hearing concerned the genuine redundancy objection taken by the Respondent, merits and remedy. Mr Mullaney appeared for himself. Mr Daniel O'Rourke, Head of Workplace Relations, appeared for the Respondent. All the evidence, submissions and documents relied upon by the parties has been considered.
[4] For the reasons explained below, I am satisfied that Mr Mullaney's dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. I have dismissed Mr Mullaney's application for an unfair dismissal remedy.
[5] Mr Mullaney commenced employment with the Respondent on 13 September 2023.[6] Mr Mullaney was employed as a Treatment Plant Operator and worked at the Dysart Mine, which is one of several coal mines operated by the BHP Mitsubishi Alliance (BMA) in Central Queensland.
[6] The Respondent held a contract with BMA to supply workers to BMA's coal mines across Central Queensland (hereafter BMA Contract), including the treatment plant operators at Dysart such as Mr Mullaney. The commencement date of the BMA Contract was not apparent from the material before me. The precise total number of ISS employees that worked pursuant to the BMA Contract was not apparent from the material before me. From what I was told at the hearing, it appears that the Respondent had approximately 10 employees working at Dysart and approximately 60 - 70 employees working across BMA's various mines.
[7] Mr Mullaney worked in a crew that was supervised by Mr Chris Harp. Mr Mullaney alleged that he, and other workers on the crew, were bullied by Mr Harp. Mr Mullaney relied upon a witness statement of Mr Tony Wardlow,[7] which was extremely brief and asserted that Mr Harp had engaged in aggressive and inappropriate behaviour towards Mr Mullaney. Mr Mullaney also relied upon a witness statement of Mr Gary Brown,[8] which detailed several concerns with Mr Harp's conduct. Mr Mullaney raised his concerns regarding Mr Harp with Ms Melissa Denham. Ms Denham is employed by the Respondent and appears to have been responsible for managing the BMA Contract. It appears that Mr Mullaney raised this concern, via email, to Ms Denham on 5 March 2025.[9] Mr Mullaney formalised his concerns regarding Mr Harp's conduct by making a complaint, which was referred to as an ethics point claim.[10] Mr Mullaney says that Ms Denham instructed him to make the ethics point claim.
[8] On 15 March 2025, Mr Mullaney, and other workers, attended a meeting with Mr Harp. On Mr Mullaney's uncontested account of this meeting, which I accept, at the start of the meeting, Mr Harp said "if anyone here has a fucking problem with my management style speak now".[11] Mr Mullaney alleged that Mr Harp said those words because Mr Harp had been told about the complaints that had been made. It appears from what Mr Mullaney said at the hearing that he was stood down on pay following this meeting arising from complaints made about his own conduct at this meeting.
[9] Ultimately, Mr Mullaney did not return to work and was dismissed many months later on 31 August 2025. In the period from being stood down on pay until dismissal, Mr Mullaney was unfit for work from approximately June 2025 until his dismissal. Mr Mullaney's unfitness for work was certified as being due to anxiety.[12] Mr Mullaney was in receipt of workers compensation payments in this period.
[10] Mr Craig Zubrinich is employed by ISS in the role of People & Culture Manager - Queensland. Mr Zubrinich gave unchallenged evidence, which I accept, that he was advised in late June 2025 that the Respondent had been unsuccessful in retaining the BMA Contract and that work provided to BMA under the BMA Contract would cease on 31 August 2025.[13] Mr Zubrinich gave unchallenged evidence, which I accept, that the Respondent's employees were formally notified on 8 July 2025.[14]
[11] Such formal notification was provided to Mr Mullaney through a letter dated 8 July 2025 (8 July 2025 Letter),[15] which was before me. In summary terms, the 8 July 2025 Letter notified Mr Mullaney that the Respondent would cease performing work under the BMA Contract on 31 August 2025 and that Mr Mullaney's employment with the Respondent would cease on 31 August 2025 unless Mr Mullaney was redeployed to an available position. The 8 July 2025 Letter advised that the Respondent had limited opportunities for redeployment. At the hearing, Mr Mullaney confirmed that he received the 8 July 2025 Letter.
[12] Mr Zubrinich gave unchallenged evidence, which I accept, that he attended site for a period of approximately three days for the purpose of consulting with the Respondent's employees about the change and to provide transition and redeployment support to those employees.[16] As explained above, Mr Mullaney was not on site in this period and consequently did not attend these meetings.
[13] I am satisfied that the Respondent sent a letter dated 16 July 2025 (16 July 2025 Letter)[17] to Mr Mullaney. Both the 8 July 2025 Letter and the 16 July 2025 Letter were sent to Mr Mullaney's personal email address. To the extent that Mr Mullaney suggested under cross-examination that he did not receive the 16 July 2025 Letter because it was sent to his work email address, I do not accept that evidence. I am satisfied that Mr Mullaney received the 16 July 2025 Letter. I am satisfied that Mr Mullaney did not engage with the 16 July 2025 Letter on advice from his doctor. I make these findings based on Mr Mullaney's answers to some questions from me following the cross-examination, which was to the effect that Mr Mullaney was unsure whether he received the 16 July 2025 Letter because he was on 'stress' leave (i.e. the leave discussed above) and that he was under the advice from his doctor to steer clear of anything to do with the Respondent because they were the ones causing Mr Mullaney stress. In summary terms, the 16 July Letter advised that the Respondent was seeking to engage with the incoming service provider to identify potential job opportunities. The 16 July 2025 Letter advised of several trade-based available positions with the Respondent. Each of these available positions were FIFO from Perth. The 16 July 2025 Letter provided contact details for employment agencies that had access to a wide range of current roles that were available.
[14] On 28 August 2025, Mr Mullaney was sent a letter of the same date from the Respondent (28 August 2025 Letter).[18] In summary terms, the 28 August 2025 Letter provided Mr Mullaney with a link to all available roles on the Respondent's website and restated that Mr Mullaney's employment would come to an end effective 31 August 2025 unless Mr Mullaney elected to take up any such role. Other information was provided in the 28 August 2025 Letter, including the payment that Mr Mullaney would receive on termination of his employment.
[15] The parties agreed at the hearing, and I am satisfied, that the Respondent lost the BMA Contract. It appears that a company unrelated to the Respondent won that contract and begun to perform the work previously performed by the Respondent on the BMA sites. Arising from the loss of the BMA Contract, Mr Mullaney, and an unidentified number of other employees of the Respondent, were dismissed on 31 August 2025.
[16] The meaning of genuine redundancy is defined at section 389 of the FW Act. Section 389 of the FW Act is reproduced below:
(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] Section 389 of the FW Act is clear.[19] In order for Mr Mullaney's dismissal to be a genuine redundancy, each of the three requirements of section 389 must be satisfied. The three requirements of section 389 are considered below.
Whether the Respondent no longer required Mr Mullaney's job to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise: Section 389(1)(a)
[18] The first requirement of section 389 is section 389(1)(a). There are two parts to section 389(1)(a). The first part is whether the person's employer no longer required the person's job to be performed by anyone. The second part is that the job is no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. That is, the second part is concerned with the reason/s for the job being no longer required. Both parts of section 389(1)(a) must be satisfied.
[19] The first part of the section 389(1)(a) was considered by a Full Bench of the Commission in Ulan Coal Mine Limited v Henry Jon Howarth and others [2010] FWAFB 3488 (Ulan). The Full Bench in Ulan observed that section 389(1)(a) refers to a person's "job".[20] The Full Bench went on to distinguish the person's job from the duties performed by the person.[21] A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee.[22] The effect of the decision of the Full Bench in UIan is that the first part of section 389(1)(a) must be approached by answering whether the Respondent no longer required Mr Mullaney's job - as so defined - to be performed by anyone.
[20] Mr Mullaney's job was that of a treatment plant operator at the Saraji mine performed pursuant to the BMA Contract. On the material before me, the Respondent no longer required that job to be performed by anyone. The fact that the duties performed by Mr Mullaney may still being performed by the employees of an unrelated contractor that replaced the Respondent does not mean the Respondent still required Mr Mullaney's job to be performed.
[21] The second part of section 389(1)(a) requires that Mr Mullaney's job was no longer required because of changes in the operational requirements of the Respondent. The FW Act does not define the term operational requirements. Operational requirements has been held to be a broad term that permits consideration of many matters including, but not limited to, past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve the efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.[23]
[22] Mr Mullaney's submissions did not engage in any real detail with section 389 of the FW Act. To the extent that it can be said that Mr Mullaney's submissions engaged with section 389, those submissions can be considered by reference to the second part of section 389(1)(a) of the FW Act. In summary terms, Mr Mullaney contended that the investigation into the allegations made against him arising from his conduct at the meeting on 15 March 2025 and his consequent standing down took too long. Mr Mullaney contended that if his conduct was as bad as alleged that he would have been dismissed. Mr Mullaney contended that the investigation and stand down went for as long as it did to coincide with the end of the BMA Contract. Mr Mullaney contended that the Respondent adopted this course to avoid an unfair dismissal application examining Mr Mullaney's conduct at the meeting on 15 March 2025. At the hearing, Mr Mullaney explained that the Respondent adopted this course because "they thought that they couldn't get done for unfair dismissal". In support of his argument, Mr Mullaney said that Ms Denham had told other workers at the site that he would not be returning to work due to his conduct at the meeting on 15 March 2025.
[23] I do not accept Mr Mullaney's argument. There is an insufficient evidentiary basis to support a finding that Mr Mullaney's dismissal was for the reasons that he asserted. Mr Mullaney did not identify the other workers that Ms Denham allegedly told that he would not be returning to work due to his conduct at the meeting on 15 March 2025. No such evidence was given by anyone, including the two witnesses relied upon by Mr Mullaney, namely, Mr Wardlaw[24] and Mr Brown.[25] I am not prepared to make a finding that Ms Denham made the comments in question based on hearsay evidence / submissions from Mr Mullaney. The facts also demonstrate that the Respondent knew that it would not retain the BMA Contract by late June 2025. That was the evidence of Mr Zubrinich. There is no evidence before me to support a finding that the Respondent knew that it would not retain the BMA Contract any earlier than late June 2025. There are approximately eight weeks between 15 March 2025 and late June 2025. There is no evidentiary basis for me to find that the investigation and consequent stand down of Mr Mullaney in that period was delayed to coincide with the end of the BMA Contract. It is also the case that Mr Mullaney was unfit for work from approximately June 2025 until his dismissal. There are several reasons that could explain why an employer would not move quicker with a disciplinary investigation with an employee that is unfit for work, especially where that employee is suffering from anxiety and is under, and acting, on medical advice not to engage with their employer. Mr Mullaney's argument is based on speculation. I do not accept that speculation. I am satisfied that Mr Mullaney's job was no longer required because the Respondent did not retain the BMA Contract. The reason for Mr Mullaney's job being no longer required can be comfortably characterised as being because of changes in operational requirements.
[24] For those reasons, I am satisfied that the requirement of section 389(1)(a) of the FW Act has been met.
Whether the Respondent has complied with any obligation in a modern award or enterprise agreement that applied to consult about the redundancy: Section 389(1)(b)
[25] The ISS Integrated Services Pty Ltd (BMA Sites) Enterprise Agreement 2012-2016 (the Agreement) applied to Mr Mullaney's employment with the Respondent. I am satisfied that clause 10 of the Agreement required the Respondent to consult about Mr Mullaney's redundancy.
[26] At the hearing, Mr Mullaney said that the Respondent had 'probably' met their obligation under the Agreement to consult. On reviewing the letters that the Respondent provided to Mr Mullaney, which includes the 8 July 2025 Letter, the 16 July 2025 Letter and the 28 August 2025 Letter, and Ms Denham's invitation to discuss the change with Mr Mullaney,[26] I am satisfied that the Respondent complied with its obligation in the Agreement to consult about the redundancy. The requirement in section 389(1)(b) has been met.
Whether it would have been reasonable in all the circumstances for Mr Mullaney to be redeployed within the Respondent's enterprise or the enterprise of an associated entity: Section 389(2)
[27] A Full Bench of the Commission in Pykett explained that "for the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding."[27] A Full Court of the Federal Court of Australia in Helensburgh Coal[28] was concerned with whether redeployment would have been reasonable in all the circumstances and held:
[66] It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC's assessment of what "would have been reasonable in all [of] the circumstances".
[28] The High Court of Australia dismissed an appeal from the decision of the Full Court of the Federal Court of Australia in Helensburgh Coal.[29]
[29] An earlier Full Bench of the Commission in Honeysett[30] provided some guidance of a number of matters that may be relevant in determining whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. Those matters are non-exhaustive, but include the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee's residence and the remuneration which is offered.
[30] Mr Mullaney did not identify any job, position or other work to which he contended it would have been reasonable in all the circumstances for him to be redeployed. At the hearing, Mr Mullaney advised that he was not qualified to perform the trade-based FIFO positions, which the Respondent advised were vacant in the 16 July 2025 Letter.
[31] I am unable to identify any other job or position or other work within the Respondent's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mr Mullaney.
[32] For the reasons explained above, I am satisfied that the requirement in section 389(2) of the FW Act has been met.
[33] Mr Mullaney's dismissal was a genuine redundancy within the meaning of 389 of the FW Act. In accordance with section 396(d) of the FW Act, the merits of Mr Mullaney's dismissal cannot be considered. Mr Mullaney has not been unfairly dismissed within the meaning of section 385 of the FW Act and the Commission cannot order a remedy. Mr Mullaney's application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately to this decision.
[1] Digital Hearing Book (DHB) pages 21 - 22.
[13] Paragraph 5 of the Witness Statement of Craig Zubrinich (Zubrinich Statement), DHB page 80.
[14] Paragraph 6 of the Zubrinich Statement, DHB page 80.
[16] Paragraph 7 of the Zubrinich Statement, DHB page 80.
[19] Helensburgh Coal Pty Ltd v Mr Neil Bartley and Mr Jake Bennett and Others [2022] FWCFB 166 at [32] - [33].
[23] Amy Veronica Greene v Floreat Hotel - CEH Group t/a Floreat Hotel [2021] FWC 2198 at [99], Amy Veronica Greene v Floreat Hotel - CEH Group t/a Floreat Hotel [2021] FWCFB 4103 at [22], Nettleford v Kym Smoker Pty Ltd [1996] IRCA 495, (1996) 69 IR 370, 373.
[27] Technical and Further Education Commission t/a TAFE NSW v L. Pykett [2014] FWCFB 714 at [36].
[28] Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45.
[29] Helensburgh Coal Pty Ltd v Neil Bartley and Others [2025] HCA 29.
[30] Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 at [28].
Printed by authority of the Commonwealth Government Printer
Mr Michael Mullaney
ISS Integrated Services Pty Ltd [2026] FWC 890
(1996) 69 IR 370