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[2020] FWC 5952
defendant. The Commission dismissed Khaddaj’s unfair dismissal application after finding his dismissal was a genuine redundancy; an order giving effect to the decision was to be issued separately.
3 cited instruments linked from this judgment.
ACS Property Services said pandemic-related business changes meant it no longer needed a Marketing Coordinator. Some tasks continued, but the Commission found they had been divided among other staff or outsourced, and that the former job itself no longer existed. The Commission also found that no award or enterprise-agreement consultation requirement applied and no suitable redeployment role was available. It therefore treated the dismissal as a genuine redundancy and dismissed Khaddaj's unfair dismissal application.
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1,989 words · generated 01/10/2026
The Fair Work Commission considered an unfair dismissal application by Mr Omara Khaddaj against ACS Property Services. Khaddaj worked as the Respondent's Marketing Coordinator from 24 September 2019. His annual salary was $65,000 plus superannuation, and the position description included marketing campaigns, sales support, tender responses, events, digital content and business development [6]-[8].
The Respondent told Khaddaj it was considering ending his employment by reason of redundancy. The Managing Director, Mr Igini, said he discussed that possibility with Khaddaj by Zoom on 19 June 2020 and spoke with him again on 21 June. A letter dated 25 June confirmed the decision, and the dismissal took effect on 8 July [10]. The letter referred to post-COVID organisational change, cancellation of trade shows and customer events, reduced marketing budget, slow business conversion and economic uncertainty [10].
Khaddaj applied to the Commission on 28 July, seeking compensation for unfair dismissal [1]. The Respondent raised a jurisdictional objection, arguing that the dismissal was a genuine redundancy. At the determinative conference, Khaddaj appeared for himself and gave evidence. Mr Igini represented the Respondent and also gave evidence [2]-[4].
The Commission first found that Khaddaj had been dismissed on the Respondent's initiative. It also found he applied within the 21-day period, had completed the six-month minimum employment period, and was protected from unfair dismissal. His earnings were below the high-income threshold identified in the decision [19]-[26]. The Small Business Fair Dismissal Code did not apply because the Respondent employed 316 staff [23], [27]-[28].
The decisive question was whether the dismissal met the genuine redundancy requirements in s 389 of the Fair Work Act 2009 (Cth). The Commission found that it did, and dismissed the application [48]-[50].
The Commission's principal reasoning was that the legal test concerned whether the job remained required, not whether every task formerly performed by Khaddaj had disappeared. It relied on the Full Bench's discussion in Ulan Coal Mines Limited v Henry John Howarth and others [2010] FWAFB 3488. As summarised in the decision, a job is a collection of functions, duties and responsibilities assigned to an employee, and those duties may be redistributed during a reorganisation even though the original job no longer exists [31]-[32].
The parties agreed that the position description accurately reflected the role [9]. The evidence showed that some marketing work continued. The Respondent's account was that duties had been divided among remaining staff, while public relations and social media content management had been outsourced to a public relations consultant for about eight hours each week [12], [15], [33], [36]. The Commission did not regard this continuation of tasks as decisive. It asked whether the Marketing Coordinator job itself continued to be required.
The Commission considered competing evidence about events. Khaddaj said event coordination accounted for about 10 per cent of his workload; Mr Igini estimated up to 70 per cent. The Commission found neither account convincing, noting that neither party had produced evidence about the volume of pre-pandemic activity that could have resolved the disagreement [34]. It observed that the performance measures allocated 20 per cent to technical breakfasts, which suggested the events work was not merely minor. It nevertheless found no compelling evidence that events occupied 70 per cent of Khaddaj's time. The reduction in his working hours from 38 to 25 per week also did not support that estimate, in the Commission's view [35].
The Commission accepted that live or virtual industry and marketing forums had not taken place during 2020 and that planning and conducting forums formed a substantial, though not majority, part of the role [35]. It also accepted the Respondent had restructured its marketing activities because of pandemic-related business impacts, including reduced revenue, restrictions on face-to-face events and the decision to use external public relations support [36]. Those findings supported its conclusion that the role had ceased to exist even though some duties remained [37].
The other two elements of s 389 also favoured the Respondent. The Commission assessed possible award coverage rather than treating the parties' views as conclusive. It found the Marketing Coordinator duties were not covered by the Cleaning Services Award classifications, were not wholly or principally clerical work for the Clerks Award, and fell within the professional marketing specialist exclusion in the Miscellaneous Award. There was also no enterprise agreement [38]-[44]. The Commission therefore found no relevant award or enterprise-agreement consultation obligation under s 389(1)(b) [44].
On redeployment, Khaddaj raised an Operations Coordinator role and an HR role. The Commission accepted that the Operations Coordinator had not been newly created: an employee was returning to it after stand-down. It also accepted the HR role required an experienced HR professional and found no evidence that Khaddaj had the necessary skills and experience. Unchallenged evidence indicated there were no other suitable roles available, including within associated entities [46]-[47].
This decision did not announce a new test for genuine redundancy. It applied s 389 and the Full Bench's explanation in Ulan. The statutory structure, as set out at [29], asks three connected questions: whether the employer no longer requires the job because of operational changes; whether applicable award or enterprise-agreement consultation obligations were met; and whether reasonable redeployment within the employer or an associated entity was available.
The decision's practical explanation of the first question is that the job and the tasks performed within it are not necessarily the same thing. The Commission set out that functions and duties may cease to be part of an employee's role through reorganisation, and that tasks can survive and be reassigned without the former job surviving [32]. It applied that distinction to the continued internal and outsourced work in this matter [33], [36]-[37].
The decision also illustrates that award coverage for the consultation limb is assessed by examining the actual duties and the relevant award terms. At [38], the Commission said the parties' subjective views about award coverage were not determinative. It then compared the role with the Cleaning Services Award, Clerks Award and Miscellaneous Award [39]-[44]. The outcome on that issue was specific to the position description and awards considered in this case.
The decision does not alter the statutory requirements or establish that pandemic-related business changes automatically make a dismissal a genuine redundancy. Its application turned on the Commission's findings about the Respondent's operational changes, the redistribution and outsourcing of duties, award coverage and available roles. The text supplied does not provide a post-decision account of changes to the law.
At [31]-[32], the Commission summarised the Ulan approach: a job is a collection of duties, responsibilities and functions assigned to a particular employee. In plain English, the test is not simply whether former tasks continue somewhere in the organisation. The focus is whether the employee's former job, considered as a role, remains necessary.
At [35], the Commission dealt with the disputed estimate of how much time events work took. It did not accept Mr Igini's estimate of 70 per cent, but it also did not accept that events were only a minor part of the job. The performance measure allocating 20 per cent to technical breakfasts was relevant, although the decision does not equate that performance weighting with a precise percentage of working time.
At [37], the Commission stated: “While some of the Applicant's former duties are still required, his role is not.” In plain English, continued social media, public relations or other marketing tasks did not, by themselves, establish that the Marketing Coordinator position still existed. The Commission found those tasks had been redistributed or outsourced and that the role had not been replaced.
At [44], the Commission concluded that Khaddaj was not covered by a modern award or enterprise agreement. This meant, on its findings, that the consultation limb in s 389(1)(b) did not impose a consultation obligation in this case. The decision's award analysis depended on the actual duties and the terms of the awards considered.
At [47]-[48], the Commission found no suitable redeployment position was available in the Respondent's business or an associated entity. In plain English, the Commission did not treat the existence of any other position as enough: it considered whether a suitable role was available and whether redeployment would have been reasonable in all the circumstances.
The reasoning is relevant where an employer says a position has been removed or reorganised, but the employee points to tasks that continue to be performed by colleagues or contractors. The decision explains why that evidence is relevant but not necessarily conclusive: the legal inquiry concerns whether the job remains required, rather than whether every task has stopped [31]-[37].
The decision may also be relevant where the claimed operational change includes reduced work, changed budgets, cancelled events or redistribution of duties. Here the Commission considered the Respondent's evidence about reduced revenue, reduced marketing budget, cancelled forums, reduced hours and outsourced work together, rather than treating any single factor as determinative [12], [34]-[37].
The case also illustrates the importance of evidence about the actual volume and composition of the role. The Commission identified a gap in the evidence about pre-pandemic event activity and found the parties' competing estimates unconvincing [34]. It used the position description, performance measures and reduced working hours as part of its assessment [35].
Finally, the decision is relevant to the separate award-coverage and redeployment limbs. It shows the Commission examining an employee's actual duties against award coverage provisions, and examining whether the suggested roles were genuinely available and suitable [38]-[47]. The case does not mean that every employee with a marketing title is excluded from award coverage, or that every reassignment of duties establishes a genuine redundancy. Those matters depend on the applicable instrument, duties and evidence.
The judgment provided here does not refer to later decisions treating or applying Khaddaj. It therefore does not establish, on the supplied material, whether later courts or Commission benches have followed, distinguished or otherwise addressed this decision.
The precedent relationship that can be identified from the judgment itself is its application of the Full Bench decision in Ulan Coal Mines Limited v Henry John Howarth and others [2010] FWAFB 3488 [31]-[32]. No later treatment of Khaddaj is included in the source text. Any account of later treatment would require additional case sources, which are not provided here.
The decision resolved the dispute on the evidence before Deputy President Masson. It does not specify a universal measure for deciding when a redistributed set of tasks has become a different job, rather than the same job continuing under another arrangement. Its reasoning is that the job is assessed as a collection of functions, duties and responsibilities, but the application remains fact-specific [31]-[37].
The evidence about the proportion of the role devoted to events was incomplete. The Commission expressly noted the absence of evidence about pre-COVID activity and did not accept either party's estimate as persuasive [34]-[35]. The decision therefore does not resolve how that factual dispute might have affected the assessment with more complete evidence.
The decision's award analysis is similarly tied to the role and the instruments then considered. It does not decide how a different marketing position, with different duties or award terms, should be classified. Nor does the supplied text address circumstances in which a relevant award or enterprise agreement does contain consultation obligations.
Finally, the redeployment conclusion depended on the evidence about vacancies, skills and the status of the identified positions. The decision does not set out a general rule for every possible redeployment assessment; it records why the Operations Coordinator and HR roles did not provide reasonable redeployment on the evidence in this matter [46]-[47].
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s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - jurisdictional objection - genuine redundancy - objection upheld - application dismissed.
[1] On 28 July 2020, Mr Omara Khaddaj (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with ACS Property Services (the Respondent) on 8 July 2020. By way of remedy the Applicant seeks an order for compensation.
[2] The Respondent raised a jurisdictional objection to the application on the grounds that the termination was a genuine redundancy. Conciliation of the matter before the Commission was unsuccessful and the matter was listed for hearing/conference before me in respect of both the jurisdictional objection and merits on 10 November 2020. Both parties filed material in advance of the hearing/conference in accordance with the directions issued.
[3] At a Mention/Directions Hearing conducted on 10 September 2020 submissions were sought from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Considering there were only 2 witnesses and the parties wishes it was decided to set the matter down for a Determinative Conference on 10 November 2020.
[4] At the conference the Applicant was self-represented and gave evidence himself while the Respondent was represented by Mr L. Igini, the Managing Director of the Respondent, who also gave evidence.
[5] The Respondent is a Melbourne based company that provides cleaning, maintenance and facility management services and at the date of the Applicant's dismissal employed 316 staff.[1] Mr Igini gave evidence that there were no associated entities although the Respondent was currently developing a new business to be known as ACS Indigenous, which will seek to engage and promote employment opportunities for indigenous workers.
[6] The Applicant commenced employment with the Respondent on 24 September 2019 in the position of Marketing Coordinator and was engaged on an annual salary of $65,000 plus superannuation.[2] A Position Summary was set out in a Position Description (PD) which was an Annexure to his Contract for Services (the Agreement)[3] which relevantly states as follows;
Market and communicate our services by developing and implementing marketing and advertising campaigns; tracking sales data; maintaining promotional materials inventory; planning meetings and trade shows; maintaining databases; preparing reports and assisting with tender bids and presentations.
Acting as the first line of sales to source relationships with new customers and key decision makers to develop business opportunities for the sales reps to meet sales targets. You will be responsible for representing and communicating the company's brand to the outside world and grow the ACS brand. To lead and drive the overall marketing, media communications and strategic roadmap.
You are to analyse the market, competitors and industry trends and drive strategies for increasing awareness of the company's services among the target audience group.
You are to identify sales leads, pitch services to new clients and maintain a good working relationship with new contacts.
[7] The Applicant's duties and responsibilities were also set out in the PD at Annexure 1. His key responsibilities were as follows;
Communicate the company's vision and positioning statement to external and internal stakeholders.
Assist the sales team in preparing and responding to tender responses.
Implements marketing and advertising campaigns by assembling and analysing sales forecasts; preparing marketing and advertising strategies, plans, and objectives; planning and organising promotional presentations; updating calendars.
Prepares marketing reports by collecting, analysing, and summarising sales data.
Keeps promotional materials ready by coordinating requirements with graphic agencies; inventorying stock; placing orders; verifying receipt.
Supports sales staff by providing sales data, market trends, forecasts, account analyses, new service information; relaying customer services requests.
Plans meetings and trade shows by identifying, assembling, and coordinating requirements; establishing contacts; developing schedules and assignments; coordinating mailing lists.
Monitors budgets by comparing and analysing actual results with plans and forecasts.
Updates job knowledge by participating in educational opportunities; reading trade publications.
Accomplishes organization goals by accepting ownership for accomplishing new and different requests; exploring opportunities to add value to job accomplishments.
Implement and drive the organisations marketing strategy
Oversee and manage the marketing content for the company's digital platforms including, Website, social media, white papers etc.
Event management- develop a plan and roadmap for the next 12 to 24 months including industry breakfasts, advocates dinner, and other social events.
• Prepare marketing presentation[4]
Termination of your employment by reason of redundancy
The purpose of this letter is to confirm the outcome of a recent review by ACS Property Services (the employer) of its operational requirements, and what this means for you. As a result of change in our organisational structure post COVID-19, including the cancellation of trade shows & other customer events for FY20-FY22, reduced marketing budget for FY21, slow conversion rate and the uncertainty within the Australian Economy the position of the Marketing Co-Ordinator is no longer required. Regrettably, this means your employment will terminate. This decision is not a reflection on your performance. Based on your length of service, your notice period is two weeks. Therefore, your employment will end on 8/7/2020.
[11] On 14 July 2020, following his dismissal taking effect, the Applicant met with Mr Igini during which meeting the Applicant advanced alternatives to his dismissal for Mr Igini's consideration, including altering his job description to fit with evolving business needs, working reduced hours and contracting to the Respondent on a "freelance basis" in respect of work previously undertaken by him as an employee. The Applicant took issue with the fact that Mr Igini failed to meet with him until 14 July 2020 in respect of the decision to make him redundant. Mr Igini attributed his inability to meet face to face with the Applicant to the Victorian State government restrictions and the Respondent's own business restrictions during the pandemic.
[12] Mr Igini gave evidence in respect of the reasons for the Applicant's dismissal. He states that the Applicant's role was no longer required and that some of the tasks formerly undertaken by the Applicant had been divided up between other remaining staff. A major driver of the reduced work required was that of the cancellation of trade show and customer events. A small volume of the balance of the work, that being public relations and social media content, had been contracted out to an external public relations firm. In support of the decision made to dismiss the Applicant on grounds of redundancy, Mr Igini referred to the impact that the Covid 19 pandemic had had on the Respondent's business during 2020, which included;
Trade shows and promotional events, for which the Applicant was responsible for coordinating, had been cancelled;
Reduced marketing budget;
Sales department staff were now working only 3 days per week;
3 other employees had been made redundant;
A reduction in sales had been experienced;
The Applicant's hours of work had been reduced in the April-June 2020 period to 25 hours per week;
• The Respondent was forced to seek rent reductions as a consequence of the revenue decline[8]; and
[13] The Applicant disagreed that his role was no longer required and said that marketing campaigns were still active as evidenced by ongoing social media campaigns, email campaigns and website updates by the Respondent. He accepted that there had been reductions in both the budget and promotional/marketing events but that work (events coordination) was a small component of his overall duties, making up only 10% of his workload whereas Mr Igini estimated it represented up to 70% of the Applicant's workload. The Applicant also referred to other duties which he says still exist which he had been undertaking whilst employed, including marketing activities, email campaigns, business response to Covid 19 and supporting the development of a new business division to be known as ACS Indigenous. The Applicant also says that while there were no live promotional events during the pandemic restrictions there was the potential to conduct virtual events. He further says that ACS was less affected than other businesses during the pandemic as it was involved in commercial and industrial cleaning, demand for which services remain.
[14] With respect to promotional events Mr Igini says that there had been no promotional or industry events during the period of pandemic restrictions, be that live or virtual. Regarding the Respondent's new business development, ACS Indigenous, he gave evidence that there are currently no employees in that new division, it is in the start-up phase, hasn't yet gone to market and is being currently managed by 2 partners of the Respondent.
[15] Mr Igini gave further evidence in respect of some of the outsourced work formerly undertaken by the Applicant. He says that the skillset he was looking for was in the area of public relations (PR) and while he accepted there was some overlap, he still distinguished the PR skillset from the marketing skillset possessed by the Applicant. The Applicant disagreed with Mr Igini's characterisation of the PR and marketing skillsets as being different and challenged Mr Igini as to whether it was reasonable in the circumstances to say he didn't have the required skillset when he had been doing the role when employed by the Respondent. Mr Igini in reply described that he was looking for more journalism-based skills through outsourcing the work. He also noted that the volume of work being undertaken by the external PR consultant was approximately 8 hours per week.
[18] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant's employment with the Respondent has been terminated on the Respondent's initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[19] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant's employment with the Respondent terminated at the initiative of the Respondent.
[20] Under section 396 of the Act, the Commission is obliged to decide the following matters 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; and
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[21] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed from his employment with effect from 8 July 2020 and made the application on 28 July 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[22] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[23] It was not in dispute and I find that the Respondent is not a small business employer, employing 316 staff at the time of the Applicant's dismissal. Further, the Applicant was an employee, who commenced his employment with the Respondent on 24 September 2019 and was dismissed with effect on 8 July 2020, a period in excess of 6 months.
[24] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period of 6 months which applies.
[25] It was not contested that the Applicant's annual salary at the date of his dismissal was $65,000. It follows and I am satisfied that, at the time of dismissal, the sum of the Applicant's annual rate of earnings (being $65,000) together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2020, is $153,600.
[26] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
[27] Section 388 of the FW Act provides that a person's dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[28] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[29] Section.389 of the FW Act, defines a genuine redundancy 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:
(a) the employer's enterprise; or
(b) the enterprise of an associated entity of the employer."
Was the Applicant's job no longer required - s 389(1)(a)?
[30] I turn first to consider whether the Respondent no longer required the Applicant's job to be performed by anyone because of the operational requirements of the Respondent.
[31] A Full bench considered the meaning of the term "genuine redundancy" in Ulan Coal Mines Limited v Henry John Howarth and others[9] (Ulan) and relevantly stated as follows:
[17] It is noted that the reference in the statutory expression is to a person's "job" no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee" (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
"What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant..." (at p.308)
This does not mean that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the "job" of that employee no longer exists.
[18] In Kekeris v A. Hartrodt Australia Pty Ltd Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
"When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a 'genuine redundancy' where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists." [10](references omitted)
[32] It follows from the Full Bench's reasoning in Ulan and the summary of relevant cases cited in their decision that:
(i) A job is a collection of functions, duties and responsibilities assigned to a particular employee within an organisation;
(ii) The functions, duties and responsibilities may cease to be part of an employee's job through a reorganisation or redistribution of duties;
(iii) Should there no longer be any functions or duties to be performed by a particular employee, then his or her job ceases to exist;
(iv) The fact that the tasks and duties previously performed by an employee may have survived and been reallocated to other employees through a restructure does not mean the job is still required; and
(v) An employee's dismissal may be a genuine redundancy even though particular functions, duties and responsibilities previously performed by that employee are being performed by other employees.
[33] The Applicant contends that the duties he previously performed are still required and that while he accepts that the Covid 19 pandemic restrictions have impacted the marketing budget and conduct of industry/marketing forums, his role still exists. He points in particular to continued promotion of the Respondent's business through online social media and website campaigns and the outsourcing of particular aspects of his former role. The Respondent does not resist the argument that functions, duties and responsibilities formerly assigned to the Applicant have survived his departure. Those surviving duties have, according to Mr Igini, been reallocated to other staff and to an external PR consultancy to which Mr Igini was looking towards for a higher level of journalism-based support.
[34] The Applicant acknowledged that the marketing budget has been reduced during 2020 and that his hours of work had been substantially reduced in the period from April - June 2020 from 38 to 25 hours per week. It is also the case that a significant portion of the role has not been required to be performed during 2020, that being the planning and coordination of trade shows and other promotional events. The Applicant contends that this aspect of his role required approximately 10% of his time whereas Mr Igini gave evidence that it was approximately 70% of his time. Both the Applicant and Mr Igini were unconvincing in their evidence and unhelpfully, neither led evidence as to the volume of pre-Covid activity in this area of the Applicant's work which would have assisted resolve the evidentiary contest.
Did the Respondent comply with any consultation obligations - s 389(1)(b)?
[38] Whether the Respondent was required to comply with particular consultation obligations turns on whether the Applicant was covered in his employment by a modern award or an enterprise agreement and such applicable modern award and/or enterprise agreement contains consultation provisions. It is not in dispute that the Applicant was not covered by an enterprise agreement and nor did either the Applicant or the Respondent contend that the Applicant was covered by a modern award. However, the subjective opinion of the parties as to whether a modern award covered the Applicant is irrelevant as the application of a modern award is a matter of fact to be determined by the Commission.
[39] The Cleaning Services Award 2020[11] (the Award) covers the Respondent in respect of its contract cleaning services and their employees who fall within the classifications defined at Schedule A of the Award.[12] A review of the classifications within the Award confirms that there are no classifications within the Award that apply to the duties and responsibilities of the role the Applicant occupied, that of Marketing Coordinator.
[40] In assessing the duties of the Applicant, I have also considered whether the Clerks - Private Sector Award 2020[13] (the Clerks Award) may apply. Clause 4 Coverage in the Clerks Award provides as follows;
(a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and
(b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a)."
[41] While the Respondent is a private sector employer, I am unable to conclude that the Applicant is engaged "wholly or principally" in clerical work. As set out at [6]-[8] above, the role is a sales and marketing role and any clerical work involved was a minor part of the Applicant's duties.
[42] I turn now to consider whether the Applicant was covered in his employment by the Miscellaneous Award 2020[14] (the Miscellaneous Award) the scope clause of which provides as follows;
4.2 The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
4.3 The award does not cover employees excluded from award coverage by the Act.
4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
[43] The Miscellaneous Award save for the exclusions detailed at sub-clauses 4.2 - 4.5, covers employees who fall within the classifications structure at clause 12. I am satisfied however that the Applicant is excluded from coverage by reason of falling into an excluded profession as set out sub-clauses 4.2.
[44] It follows from the above that I am satisfied that the Applicant was not covered by a modern award or enterprise agreement in his employment with the Respondent. Therefore s. 389(1)(b) does not apply so as to give rise to consultation obligations under a modern award or enterprise agreement.
Would it have been reasonable to deploy the Applicant?
[45] I turn now to consider whether it would have been reasonable in all the circumstances to redeploy the Applicant into another role.
[46] The Applicant identified two roles that had been filled during the period of his dismissal, that being the Operations Coordinator and HR roles. While the Applicant contended that he could have filled the Operations Coordinator role, Mr Igini's unchallenged evidence made clear that it was not a new role but a role to which an employee that had been stood down during the pandemic restrictions had returned. The Applicant acknowledged that he would not have wished to displace another employee returning to their role following a period of stand down. I also accept that in relation to the HR role, the Respondent had been seeking an experienced HR professional which they were successful in securing. There was no evidence adduced, nor did the Applicant contend, that he had the necessary skills and experience to fill that role.
[47] I accept and am satisfied on the basis of Mr Igini's evidence, which the Applicant did not rebut, that at the time of the Applicant's dismissal there were no other suitable roles that were available that it would have been reasonable in all the circumstances to transfer the Applicant into. Nor were than any associated entities within which there were any suitable roles to place the Applicant at the time of his dismissal.
[48] For all the reasons set out above I am comfortably satisfied that the Applicant's dismissal was a case of genuine redundancy because as at 8 July 2020:
(i) the Respondent no longer required the Applicant's job to be performed by anyone because of changes in the operational requirements of its enterprise;
(ii) the Applicant was not covered in his employment by a modern award or enterprise agreement therefore the obligation for the Respondent to have complied with particular consultation obligations does not arise; and
(iii) it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent's enterprise or the enterprise of an associated entity of the Respondent.
[49] The Applicant's dismissal by the Respondent on 8 July 2020 was a case of genuine redundancy within the meaning s 389 of the Act. Consequently, he has not been unfairly dismissed. His application for an unfair dismissal remedy must therefore be dismissed.
[50] An order giving effect to the above will be separately issued.
[1] Form F3 Employer Response, Question 1.7
[2] Exhibit A2, Contract for Services between Mr Omara Khaddaj and ACS Property Services dated 19 September
[6] Exhibit A6, Letter of Termination dated 25 June 2020
[8] Exhibit R6, Letter dated 29 April 2020 regarding turnover reduction
Printed by authority of the Commonwealth Government Printer
Mr Omara Khaddaj
ACS Property Services [2020] FWC 5952
(1995) 60 IR 304
The Commission dismissed Khaddaj’s unfair dismissal application after finding his dismissal was a genuine redundancy; an order giving effect to the decision was to be issued separately.
[8] The Applicants "Smart Goals" on which his performance was assessed was also set out in the Agreement and comprised 5 goals which were equally weighted (20%) and were as follows;
Increase our net promoter score (NPS) by 25% each quarter
Social Media Posts (min 4pcm)
Develop and run technical breakfast seminars on key industry topics (4 pa)
Create content for the customer and staff e-newsletter (x1 e-newsletter per item per QTR).
5. Marketing ROI (The target min is 3 times on the investment).[5]
[9] Both the Applicant and Mr Igini agreed during their giving of evidence that the Position Description was an accurate reflection of the duties and responsibilities of the role.
[10] Mr Igini gave evidence that he met with the Applicant via a Zoom meeting on 19 June 2020 during which meeting he advised the Applicant that he was considering the termination of the Applicant's employment on the basis of redundancy. A follow-up telephone conversation with the Applicant took place on 21 June 2020. Mr Igini says that after considering the views of the Applicant he decided to proceed with the dismissal and confirmed the decision in a letter to the Applicant dated 25 June 2020.[6] The dismissal took effect from 8 July 2020. The termination letter relevantly stated as follows in relation to the reasons for the dismissal;
[16] The Applicant also referred to other roles that had been filled in the period in which he was made redundant. He cited an Operations Coordinator role and also a Human Resources (HR) role. With respect to the Operations Coordinator role Mr Igini said the role was not a new role and the individual concerned had simply returned from a period of stand-down that had been in place during the pandemic restrictions. The Applicant acknowledged that he would not have sought to displace that other employee returning to their role.
[17] As regards the HR role, Mr Igini says that the Respondent had not had a HR professional within the business until recently and had been seeking to recruit one for some time. He says that the pandemic had created an opportunity to recruit a high calibre HR practitioner with some 18 years' experience across multiple well-regarded Australian companies. Mr Igini also gave unchallenged evidence that at the time of the Applicant's dismissal there were no other vacant roles that the Applicant was suited to.
[35] I note that the Applicant's Key Performance Measures, set out at [8] above, provides for a 20% weighting to be applied to the assessment of the Applicant's performance in respect of the development and conduct of technical breakfasts on key industry topics. Such a weighting suggests it is more than just a minor part of the Applicant's role that he claims. There is however no compelling evidence before me that it occupied 70% of the Applicant's time as contended by Mr Igini. If that were the case, then I would have expected to see a much more significant reduction in the Applicant's hours of work (from 38 to 25 hours per week) then occurred in the April - June 2020 period. Nevertheless, I do accept that conduct of industry/marketing forums has not been possible during 2020 due to the pandemic and that no forums have been conducted in a live or virtual sense. I also find that while planning and conduct of such forums constituted a substantial component of the role, it did not represent the majority of the Applicant's work.
[36] I am satisfied that the Respondent, in the face of the Covid pandemic's impact on its business, decided to restructure its organisation in respect of its marketing activities. I am further satisfied that the decision was driven in large measure by reduced revenue, a restriction on its ability to deliver face to face industry/marketing forums and Mr Igini's desire to engage external PR consultancy support in the area of public relations and social media content management. Duties formerly undertaken by the Applicant have on Mr Igini's evidence survived and been reallocated to remaining staff. Additionally, as also previously stated, the Respondent decided to outsource public relations and social media content management to a PR consultant which is delivering in the order of 8 hours contracted work per week. Furthermore, it was not argued by the Applicant that his former role been replaced since his dismissal.
[37] It is clear that the functions, duties and responsibilities formerly assigned to the Applicant have been redistributed both internally to other employees and externally to a PR consultant. While some of the Applicant's former duties are still required, his role is not. On that basis I am satisfied that the Applicant's role of Marketing Coordinator was no longer required by the Respondent to be performed by anyone because of changes in the operational requirements of the Respondent's business.