s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - whether termination a case of genuine redundancy - Applicant's employment covered by Award - Respondent failed to consult - jurisdictional objection dismissed - whether termination harsh, unjust or unreasonable - application dismissed.

• [1] Mr Sanjay Kumar Ram Rakhiani (Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from AECOM Australia Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Respondent denies these allegations and further asserts the application cannot succeed because Mr Rakhiani's employment ended because his position was genuinely redundant.

• [2] Directions were issued for the filing of submissions and evidence in relation to the Respondent's objection and the merits of Mr Rakhiani's application to be heard before the Commission in Melbourne on 20th October 2025.

• [3] I have found that the termination of Mr Rakhiani's employment was not harsh, unjust or unreasonable after considering all the material and evidence presented by both the Applicant and the Respondent in this case. For the reasons set out below, this application is dismissed.

• [4] Mr Rakhiani works as a Senior Civil Designer and is a qualified engineer. He has significant expertise working in road design. Immediately prior to his dismissal he was working on the M80 Ring Road project in Melbourne, Victoria. He started working for the Respondent from its Melbourne Office on the 5th of March in 2018. Previously, Mr Rakhiani worked for AECOM from its Sydney Office for a period from 2011 to November 2015. He also worked for AECOM Abu Dhabi from February 2007 to October 2008.

• [5] For approximately the last 30 months, Mr Rakhiani has been working on the M80 Ring Road Project. Prior to that, he has been working on several other smaller projects, including performing leading work on parts of larger projects.

• [6] It is not in dispute that the day-to-day design work on the M80 project was nearing completion in the early half of 2025.[1] Final design work was being completed, and the project was moving into the construction phase. During these final design stages, Mr Rakhiani's work involved assisting with the final design documentations, construction queries and requests for information. He submits he was fully utilised in this work.

• [7] In early April 2025, Mr Rakhiani was approached by his direct line manager, Mr Travis Martin enquiring if he had any interest in working on the tender design for a major road highway project in New Zealand. At the time he made this enquiry, Mr Martin understood the project may have required Mr Rakhiani travelling to New Zealand. At the same time, Mr Rakhiani and his wife were undergoing fertility treatment. Mr Rakhiani told Mr Martin his personal circumstances and because of this indicated he was not interested in the New Zealand opportunity.

• [8] Mr Rakhiani was off work on personal leave on the 27th of May. He returned to work the following day and accepts he finished up his day-to-day work on the M80 project that Friday, 30th of May.[2] The following Monday, his evidence is that Mr Travis asked him to check with others to see if he could find any work.[3]

• [9] The next day, Tuesday 3rd of June, he was contacted by his Team Leader, Mr Williams and invited to a meeting later that day with Human Resources Manager, Ms Ferguson. Mr Rakhiani submits he was worried what this meeting could be about. He says he called Mr Martin to work out if he knew anything or had been consulted about the meeting.

• [10] Mr Martin told Mr Rakhaini that he did not know what the proposed meeting was about. Mr Martin's evidence, which I accept, was that he was not involved in the process or decision to determine Mr Rakhiani's position was to be made redundant.[4]

• [11] The meeting with Mr Williams and Ms Ferguson convened around 12.45pm on the 3rd of June. During this meeting, Mr Williams sought to explain to Mr Rakhiani the reasons why he determined his position was no longer required to be performed by anyone and that it was likely he would be made redundant. Mr Williams and Ms Ferguson informed Mr Rakhiani they had reached this conclusion because they had reviewed the known vacancies across AECOM Australia and not been able to identify any suitable redeployment opportunities.

• [12] Mr Ferguson also sent Mr Rakhiani a letter advising him of his potential redundancy during this meeting. Attached to this letter was supporting information, along with an estimate of his potential redundancy package. Also included in the letter was a link to the list of current vacancies across the AECOM. Before the meeting ended Mr Rakhiani was invited to review the list of vacancies to see if he could identify any alternative position he may be interested seeking redeployment into. He was also told that Ms Ferguson would contact him the next day to see if he had been able to identify any redeployment opportunities. The letter Mr Rakhiani received also informed him the Respondent proposed to meet with him again on the 5th of June to discuss the options he had available.[5]

• [13] Mr Williams accepts he was personally responsible for making the determination that identified Mr Rakhiani's position being made redundant. His evidence, which I accept, is that he sought to explain this decision to Mr Rakhiani in their meeting of the 3rd of June. In making his decision, Mr Williams submits that he undertook a review of the work required to be performed within his team and determined there was only enough work for one of three Senior Technical Officers (Senior Civil Designers) in the team. He subsequently developed a criteria to score the three staff members holding these positions. Based on this criteria, and Mr Williams' expertise and experience, he determined the two staff members with the lowest scores, including Mr Rakhiani, were no longer required.[6]

• [14] At approximately 1.30pm the next day, 4 June, Ms Ferguson called Mr Rakhiani. Neither Mr Rakhiani nor Ms Ferguson agree on what was said during this conversation.

• [15] Mr Rakhiani says that he told Ms Ferguson he was still looking at the list of potential redeployment opportunities. He says that he advised Ms Ferguson he had identified 3 potential roles that had matched his skills. Two of these positions were with AECOM based in Abu Dhabi, and a third role was a junior level position based in MacKay, Queensland.

• [16] Mr Rakhiani accepts that Ms Ferguson informed him that the positions he identified based in Abu Dhabi were not positions he could be immediately redeployed into as they were with a different corporate entity. He further accepts she informed him he would have to apply for these positions separately and that he would still receive a redundancy from AECOM Australia.[7]

• [17] Mr Rakhiani insists that he informed Ms Ferguson that he didn't want a redundancy. He maintains that he told her he wanted to be deployed and would continue working to identify further potential opportunities from the list provided. He says he understood that a further meeting was to be held the next day and expected to have the opportunity to discuss any further opportunities then. He also submits that he requested the opportunity to take a period of extended leave to provide more time for him to identify additional opportunities for deployment that Ms Ferguson refused. And that he requested the opportunity to work out his notice period so that any redundancy pay he received would count as income in the upcoming financial year, which was also refused.

• [18] Mr Rakhiani's evidence is that Ms Ferguson was on 'Mission Termination'. That she didn't listen to his suggestions, engage with his requests or make any attempt to assist him in exploring suitable redeployment opportunities, including the role he identified in MacKay. He submits that she simply confirmed to him that as there were no suitable redeployment opportunities available, she would take the necessary steps to confirm his redundancy. Adding that he received the letter notifying him of his redundancy only hours after this call.

• [19] Ms Ferguson denies she was on a termination mission. Her evidence is that Mr Rakhiani made no mention of any potential role in MacKay during their conversation. And that he also did not request a period of extended leave or to work out his notice period. She submits he identified the roles in Abu Dhabi and that she informed him he would have to apply for these roles separately and still receive his redundancy pay. She accepts she moved to confirm his redundancy and termination shortly after this call because Mr Rakhiani agreed with her that there were no suitable redeployment opportunities in AECOM Australia because she wanted to get him his redundancy pay as quickly as possible. She does not accept Mr Rakhiani insisted that he wanted to be redeployed.[8]

• [20] Mr Rakhiani's employment ended on the 4th of June. The reason for termination was redundancy. On termination, he was paid the relevant notice period and redundancy entitlements as required.

• [21] Mr Rakhiani argues that his termination was an unfair dismissal because his position was not genuinely redundant and there was work available that he could perform or be redeployed to. That the decision to terminate his employment was made in a rush, without proper consultation and that he was denied redeployment opportunities, including opportunities he identified within the Respondent's business. Since his termination, he has been attempting to find suitable employment, including at AECOM, but has been unsuccessful. He seeks to be reinstated.

• [22] In support of these contentions, Mr Rakhiani argues that he has been working for the Respondent without issue for the last 7 years. That he is an experienced and skilled Senior Civil Designer. And that he is also a qualified engineer who has expertise in road design and construction projects in Australia and overseas. He submits that the Respondent is going to continue to require his current job on the M80 project to be performed during the construction phase up to 2028. That the Respondent has only 6 designers in its Melbourne Office and has heavily relied on external resources to supports its work in Victoria the past 2 years. That the designers in his team face a heavy workload and that this will continue to be the case. Adding that the reduced staff numbers will only add to these pressures. He also argues that he was not properly consulted and denied identified opportunities for redeployment. He submits he has also been treated unfairly by AECOM because they have not considered him for future employment opportunities in positions he has applied for since termination.

• [23] The Respondent rejects Mr Rakhiani's contentions. Their position is simply that Mr Rakhiani was terminated because AECOM no longer required his job as a Senior Civil Designer to be performed by anyone because of changes in the operational requirements of the business. They argue Mr Rakhiani was dismissed because his position was genuinely redundant within the meaning of the Act and that his application should be dismissed.

• [24] In the alternative, the Respondent submits that if the Commission is not satisfied the dismissal was a genuine redundancy, Mr Rakhiani was not unfairly dismissed considering the provisions set out in section 387 of the Act.

• [25] To determine this matter, I am required to determine whether Mr Rakhiani was made genuinely redundant within the meaning of the Act. If I am satisfied this is the case, his application must be dismissed. If I am not, I must determine if Mr Rakhiani was unfairly dismissed relevant to the criteria provided in s.387 of the Act by considering if his dismissal was harsh, unjust or unreasonable. If this is not the case, his application must also be dismissed.

• [26] Section 389 of the Act outlines the meaning of "genuine redundancy":

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern Award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer."

• [27] To the extent necessary, I will consider each of these requirements of s.389 below.

s. 389(1)(a) - Did AECOM no longer require the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise?

• [28] In considering whether Mr Rakhiani's redundancy was genuine the question to determine is whether the Respondent no longer required the Applicant's job to be performed by anyone because of the operational requirement of the business. In Jones v Department of Energy and Minerals,[9] Ryan J stated when describing when a redundancy may take place:

"However, it is within the employer's prerogative to 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 position, including newly created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the reorganisation, 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."

• [29] Supporting this position, the Respondent identifies Mr Rakhiani was employed as a Senior Civil Designer within its Victorian and South Australian Transportation Team (VSA). Much of the recent work the VSA Team has been associated with Victoria's Big Build Infrastructure program which is reaching its conclusion. The Respondent routinely develops an annual plan of its expected achievements across its units in the Australian and New Zealand (ANZ) region. This plan is supplemented by monthly reviews to assess performance against expectations where business leaders are required to undertake assessments of revenue, the pipeline of work, utilisation on projects and the resources needed to deliver expectations.

• [30] Following business reviews at the end of 2024, April, May and June 2025 the Respondent identified its forward pipeline of confirmed work was unable to sustain several roles and determined to reduce its number of employees as some roles where no longer needed to be performed by anyone in the business. As part of this program since June 2024, there have been a total of 14 redundancies in the VSA Transportation Team where Mr Rakhiani worked, four others of which are at the same career level. A further 53 roles have also been made redundant across all the Respondent's business lines, 19 of which are at the same career level as the Applicant.

• [31] Mr Williams' evidence is that in his role with the Respondent as its Melbourne Highways Team Leader he is overall responsible for Digital Delivery Team within which Mr Rakhiani's position is based. He submits, because the M80 road project is coming to its end the operational needs to the business have changed. Because of this change, consistent with the requirements of his role he performed a review of the current staff required and determined he had work for one of the three Senior Technical Officers (civil designers) in Mr Rakhiani's team. He rejects the suggestion Mr Rakhiani's IVF treatment had anything to do with the decision he made.

• [32] I accept the evidence of the Respondent in this regard. The clear evidence in this case is that consistent with the Respondent's established business practices of annual plans and monthly reviews, Mr Williams legitimately made the decision to determine he no longer required Mr Rakhaini's role to be performed by anyone else because of the operational requirements of the business.

• [33] Both Mr Williams and Mr Ferguson provided genuine and credible evidence of both the basis of the Respondent's decision and the process followed giving it effect. I have no reason to discount this evidence and accept this. Because of this, I am satisfied that the role of Mr Rakhiani was made redundant and that the reason for this decision was the operational needs of the business.

• [34] I find that this decision was a sound and reasonable business decision, made after due consideration, in response to a decline of company performance and changes in the operational requirements of the business. The evidence overwhelmingly supports this conclusion. As does the fact Mr Rakhiani was just one of many other employees made redundant by the Respondent at the time. Mr Rakhiani's redundancy was not a sham.

• [35] I have considered Mr Rakhiani's contention the Respondent was going to continue to require his role to be performed. Mr Rakhiani argues that both work on the M80 project would continue into 2028 and that there was a shortage of employees with his skills that had previously been supplemented with external resources. While I have considered these contentions, they are not supported by the evidence. Mr Martin's evidence is that his team, where Mr Rakhiani worked, has been reduced from 25 to 5 since January 2025.[10] And further, that of the two Senior Civil Designers made redundant in June (including Mr Rakhiani) none have been replaced. I accept this evidence.

• [36] I do not accept Mr Rakhiani's position as a Senior Civil Designer working on the M80 project continues to be required to be performed by the Respondent. Mr Rakhiani has not presented any evidence to support this assertion. Furthermore, I prefer Mr Williams' evidence of the sound and considered reasoning behind the decision to identify Mr Rakhiani as no longer being required at the time it was made.

• [37] This is not to say, however, that there is no basis for Mr Rakhiani asserting as he has done. The evidence in this case is that the labour needs and circumstances of the Respondent's contractual requirements and operational prospects can change quickly. Mr Williams accepts this to be the case. His own evidence, and that of Mr Martin, is that had it been possible for Mr Rakhiani to take up work in New Zealand he may have been able to be deployed onto another project and remain employed.[11]

• [38] Ultimately, however, I am not required and nor is it possible to determine what could have been. Equally, it could have been the case Mr Rakhiani would have been one of the other 8 members of Mr Martin's team who have been made redundant since June 5th. What I am required to determine, is at the time the decision was made to make Mr Rakhiani's position redundant, was his position on longer required to be performed by anyone.[12] For the reasons set out above, I am satisfied this is the case.

S.389(1)(b) - Has AECOM complied with any obligation in a modern Award or enterprise agreement that applied to the employment to consult about the redundancy?

• [39] It is not in dispute the Respondent was not covered by an enterprise agreement. Whether Mr Rakhiani was covered by a modern Award, however, is. Mr Rakhiani asserts that as a qualified engineer working as a Senior Civil Designer, his employment is covered by the terms of the Professional Employees Award 2020. [13] The Respondent argues that this may not be the case because Mr Rakhiani was working as a technical officer in civil design for a private consultation business. In essence, their submissions are that because AECOM did not require him to have a professional qualification, he is not covered by the Professional Employees Award.

• [40] The Professional Employees Award applies to employees performing engineering work. Clause 4, Coverage of the Award provides as follows:

"4.1 This industry and occupational Award covers employers throughout Australia as follows:

(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A - Classification Structure and Definitions of the Award and those employees."

• [41] Schedule A - Classification Structure and Definitions, sets out relevant classifications under the Award. Clause 2 Definitions provides definition of an experienced engineer for the purposes of the Award as follows.

"Experienced engineer means a Professional engineer with the undermentioned qualifications engaged in any particular employment where the adequate discharge of any portion of the duties requires qualifications of the employee as (or at least equal to those of) a member of Engineers Australia. The qualifications are as follows:

(b) having graduated in a 4 or 5 year course at a university recognised by Engineers Australia, 4 years' experience on professional engineering duties since becoming a Qualified engineer; or

(c) not having so graduated, 5 years of such experience."

• [42] It is not in dispute Mr Rakhiani was an experienced qualified engineer and that AECOM was aware of his qualifications. Nor is it in dispute that he has been working for the Respondent for some time. The Respondent takes its submissions that Mr Rakhiani is not covered by the Professional Employees Award no further. It does not, for example, present evidence that over the course of his employment no proportion of his duties have required him to use his qualifications. Furthermore, I note its initial F3 response form indicated the relevant Award of the Applicant's employment was the Professional Employees Award.

• [43] Ultimately, the application of a Modern Award is a matter of fact to be determined by the Commission. In the present case, I accept Mr Rakhiani as a Senior Civil Designer in road construction. I also accept he is a qualified engineer who, on balance, has utilised his qualification to adequately discharge some proportion of his duties over the course of his employment.

• [44] I am satisfied Mr Rakhiani's employment was in the coverage of the Professional Employees Award 2020.

• [45] Relevantly, clauses 25.1 and 25.2 of this Award provides as follows:[14]

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

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

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

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

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

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

(c) any other matters likely to affect employees.

• [46] Clause 25.5(a) defines significant effects to include the termination of employment. I am satisfied Mr Rakhiani had a right to be consulted about being made potentially redundant.

• [47] Mr Rakhiani argues that AECOM has not complied with the consultation obligations owed to him. That less than 48 hours passed between him being notified his role was potentially redundant and it being confirmed this was the case. Adding that he identified 3 suitable alternative roles to which he could have been deployed to that he has been denied the opportunity to even apply for.

• [48] The Respondent argues it has complied with any consultation obligations owed to Mr Rakhiani, whether he is covered by an Award or not. They submit they have sufficiently consulted by meeting with Mr Rakhiani, giving him notice and explaining their position and its impact on him in the discussion that occurred on the 3rd of June. And further, by discussing these changes with him the following day, providing him an opportunity to consider suitable redeployment opportunities and confirming its final decision in writing.

• [49] The Respondent also submits it considered the potential for Mr Rakhiani to be redeployed but was unable to identify any suitable alternative positions for redeployment. They identify these considerations included two potential positions Mr Rakhiani identified in Abu Dhabi that were with a separate legal entity the Respondent had no power over.

• [50] I accept Mr Williams' evidence that on his assessment and review of the potential redeployment opportunities he was confident there were no suitable options available at the time that was reasonable for Mr Rakhiani to be redeployed into.

• [51] It is not in dispute that on the 3rd of June Mr Williams and Ms Ferguson informed Mr Rakhiani that his position was potentially redundant and that it had been unable to identify suitable redeployment opportunities. Further, that at this meeting Mr Rakhiani was provided access to a list of current vacancies that had been identified across the business for him to review and consider if he could identify positions he was interested in.

• [52] Nor is it in dispute that Ms Ferguson telephoned Mr Rakhiani the next day. Her evidence is that during this call, Mr Rakhiani confirmed that he had not been able to identify any roles within Australia or New Zealand that were suitable for him to be deployed to. Ms Ferguson accepts Mr Rakhiani identified potential roles in Abu Dhabi that may have been suitable and submits she encouraged him to apply to these positions. Further advising that these were not roles the Respondent had control over as they were not within its business and that applying for these roles would not prevent Mr Rakhiani from receiving his redundancy. Given Mr Rakhiani's response that he could not identify any suitable roles and having made her own assessment this was the case, Ms Ferguson confirmed to Mr Rakhiani that his position was being made redundant effective the next day. Just after 6pm the same evening, Ms Ferguson sent Mr Rakhiani a letter confirming this.

• [53] While I prefer Ms Ferguson's evidence to that of Mr Rakhiani about what was said about the roles in Abu Dhabi during this call, I find AECOM's submissions and evidence that it has complied with its consultation obligations unconvincing. Their submissions are that in inviting Mr Rakhiani to a meeting he did not know the subject of; informing him his position was potentially being made redundant during this meeting; and providing him written notice of this decision while the meeting was being held meets the consultation requirements of the Award. I do not accept this to be the case.

• [54] Under the Award, Mr Rakhiani had a right to be first given notice of the changes that were likely to affect him. He was then entitled to discuss these changes and be provided all relevant information that was not confidential about the nature of the changes and their impact.[15]

• [55] The evidence in this case is that the first Mr Rakhiani was made aware of the changes, and their impact was in the meeting with Mr Williams on the 3rd of June. He was not given notice before this time.

• [56] Mr Rakhiani was also entitled to be given written advice of all relevant information about the nature of the changes and their impact. The extent of the written information Mr Rakhiani received was a letter he received during his meeting on the 3rd of June advising him his position was no longer required and that he may be either redeployed or made redundant.[16]

• [57] While I accept Mr Williams' evidence that he sought to explain the Respondent's decision in compliance with its obligations under the Award when he met with Mr Rakhiani, I prefer Mr Rakhiani's evidence that he had no prior notice of what this meeting was about and was shocked and struggled with what he was being told.

• [58] Because of these findings, I am not satisfied Mr Rakhiani was properly consulted about the decision to make his position redundant. It follows; I am not satisfied the Respondent has complied with its consultation obligations under the Award. By not complying with its obligation to genuinely consult Mr Rakhiani, the Respondent is unable to claim it's decision to terminate his employment was a case of genuine redundancy within the meaning of the Act. I do not accept this be the case.

s.389(2) - Would it have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or an associated entity of the employer?

• [59] Because of the finding I have made above, is not necessary to set out in detail whether I am satisfied Mr Rakhiani's dismissal was not a case of genuine redundancy because it would have been reasonable in all the circumstances for him to be redeployed within the employer's enterprise or an associated entity of the employer. Suffice to say for the reasons set out briefly below, I do not accept this to be the case.

• [60] Mr Rakhiani argues that it was reasonable for the Respondent to redeploy him to at least 3 other positions. 2 with an associated entity, being AECOM's operations in the Middle East, and a more junior position in MacKay, Queensland. He also argues that he has been denied the opportunity to identify additional potential redeployment positions because Ms Ferguson confirmed his redundancy on June 4th. And further, that the company failed to consider whether it could insource work from contractors to make positions available for employees who may otherwise be made redundant.[17]

• [61] I have considered these submissions, and I accept Mr Rakhiani's evidence that he expected to have a further meeting on June 5th and looked forward to discussing his potential redeployment options further then. I also accept that there was a prospect he may have been able to identify further opportunities if he had more time. I do not consider it adequate he was in effect given less than 24 hours to attempt to do so.

• [62] With regards to the positions Mr Rakhiani did identify, I have considered his submissions and that of the Respondent in relation to those in Abu Dhabi. I am satisfied that these positions were beyond the control of the Respondent. Ms Taylor gave credible evidence to the Commission in this regard, which I accept. Based on this evidence, I am satisfied that the Respondent could not reasonably be expected to redeploy Mr Rakhiani to these positions.

• [63] With regards to the position in Mackay, I accept the Respondent's reasoning that it did not consider this an option for redeployment because it was below Mr Rakhiani's current position. And that it sought a junior graduate for this position, not an experienced engineer and civil designer. Both Mr Williams and Ms Ferguson gave consistent evidence that when they looked at available redeployment opportunities, they looked to identify positions at the same or equivalent level within AECOM Australia and New Zealand that were in their control. Both these witnesses accept they did not identify international roles, more junior positions or contractors. Their evidence is that they made every effort to identify any suitable roles and advised Mr Rakhiani he could take the time to review the list himself to see if he could identify other opportunities. I accept this evidence.

• [64] I am satisfied that, considering all the circumstances, it was not reasonable for the Respondent to deploy Mr Rakhiani to the more junior position in MacKay. I also do not accept that it is plausible Mr Rakhiani would have accepted this position had it been made available given its reduced salary and significant relocation from Melbourne. That fact that in post termination discussions Mr Rakhiani would not accept a salary level below what he had previously received for work in Abu Dhabi support this conclusion.[18]

• [65] I also accept and am satisfied that the Respondent made an informed assessment of the potential positions to which Mr Rakhiani may have been deployed to and was unable to identify any. Mr Williams' evidence is that he did not consider contractors because there were longer any contractors working in his teams. And further, that he did not have any control over contractors engaged elsewhere in the business. I accept this evidence and am satisfied that it was not reasonable in the circumstances of this case, for the Respondent to redeploy Mr Rakhiani to another role within its business or that of any associated entity. The fact that the consistent evidence of the Respondent's witness is that it has been engaged in a round of significant redundancies since the commencement of 2025, which continued at the time of proceedings and expected to continue thereafter, support this conclusion in my view.

• [66] I do, however, accept that had Mr Rakhiani been provided more time he may have been able to identify other potential opportunities for redeployment. Ultimately, however, in light of my findings above, I do not accept that having more time would have meant he would not have been dismissed.[19]

• [67] Because I have not been satisfied Mr Rakhiani's dismissal was a case of genuine redundancy because of the failure of AECOM to comply with its consultation obligations, I am required to consider if Mr Rakhiani has been unfairly dismissed.

• [68] Section 387 of the Act provides for the criteria for consideration of a dismissal's fairness in terms of whether it was harsh, unjust or unreasonable as set out below:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

• [69] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter[20] and now turn to each of these criteria below.

s.387(a) - Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

• [70] In order to be a valid reason, the reason for the dismissal should be "sound, defensible, or well founded"[21] and should not be "capricious, fanciful, spiteful or prejudiced."[22] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[23]

• [71] The reasons given for the termination of the Applicant's employment are that this was a case of genuine redundancy. I have not been satisfied that this is the case. Despite this finding, I am, however, satisfied that the only reason that Mr Rakhiani was dismissed was because of the notification he received from Mr Williams, and confirmed by Ms Ferguson, that his position was no longer required and no reasonable redeployment opportunities could be identified. My assessment of all the evidence in this case leads me to a conclusion that this was nothing other than a sound, defensible and well-founded reason.

• [72] This finding weighs against a finding that the dismissal was harsh, unjust or unreasonable.[24]

s.387(b) - Whether the person was notified of that reason

• [73] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[25]

• [74] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[26] in explicit, plain and clear terms.[27]

• [75] In the circumstance of this case, I am satisfied Mr Rakhiani was made aware by Ms Ferguson his employment would be ending the following day when she spoke to him on the afternoon of the 4th of June and confirmed his position was being made redundant. While more notice would have been ideal, the evidence is clearly that Mr Rakhiani was notified of the reason he was being dismissed.

• [76] I find this factor weighs in favour of the Respondent.

s.387(c) - Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [77] This factor is not relevant to the facts of this case as the reason for dismissal did not relate to Mr Rakhiani's capacity or conduct.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

• [78] Mr Rakhiani argues that he was given no notice of the purpose of the meeting of the 3rd of June and that he was denied any opportunity to make a request for a support person to assist him in the discussions about his redundancy. He further argues the letter he received about his potential redundancy indicated the company proposed a further meeting would be held on the 5th of June. His evidence, which I accept, is that he relied on this advice and had an expectation he would have a further meeting on the 5th of June to discuss his options before any final decision was made. His further position is that he was surprised and shocked when Ms Ferguson confirmed his position was going to be made redundant when they spoke the next day.

• [79] The Respondent's position is that there was no unreasonable refusal by the employer to have a support person present. In support of this position, they identify the letter Mr Rakhaini was provided on the 3rd of June advised him he could bring a support person to the meeting proposed for the 5th of June. And further, that at no time did Mr Rakhiani request a support person to join him for any of the meetings or discussions.

• [80] I accept this and am satisfied no such request was made. Accordingly, it could not have been unreasonably refused.

• [81] Despite this finding, I am not, however, satisfied neither Ms Ferguson or Mr Williams demonstrated enough care and consideration in their approach to the conversations they engaged in with Mr Rakhiani about the end of his employment.

• [82] Mr Williams had no explanation for the anomaly in the dates of the termination letter he approved and the one Mr Rakhiani received.[28] The explanation Ms Ferguson provides as to why she did not meet with Mr Lakhani on the 5th of June as proposed is that she understood he had agreed with her that there were no viable options for redeployment, did not request a further meeting and that she wanted to get him his redundancy pay as soon as possible.

• [83] While I find no element of ill intent in their approach to a difficult task, the fact remains more could have been done to take more time and care to ensure Mr Rakhiani was fully aware and understood the reasons for the company's decision and its impact on him.

• [84] My conclusion is that this is a neutral factor.

s.387(e) - If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

• [85] As this dismissal did not relate to unsatisfactory work performance, this factor is not relevant to the circumstances of this case and its determination.

s.387(f) - The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and s.387(g) - Whether the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed

• [86] The Respondent is not a small business and does not contend its's size is a relevant factor or that it lacks dedicated human resource management expertise. This is not the case and as a consequence these factors are not relevant to the determination of this matter.

s.387(h) - Any other matters that the FWC considers relevant

• [87] In his submissions Mr Rakhiani identifies several other factors he considers relevant to why the Commission should conclude he has been unfairly dismissed. Amongst these are his argument that he was unfairly targeted because of the IVF treatment he was receiving and that he had no knowledge of and was not provided with a copy of the selection criteria Mr Williams relied upon to finalise which members of his team would be made redundant.

• [88] I have considered these submissions. As indicated above, I am satisfied that the only reason Mr Rakhiani was dismissed was because the Respondent made a sound and considered decision his position was no longer required to be performed by anyone else. It follows that I do not accept there was any other reason for this decision.

• [89] With regards to Mr Rakhiani's suggestion there was an element of unfairness in the way he was selected and criteria applied, I do not accept this to be the case. Accordingly, I have accepted and prefer the clear and considered evidence of Mr Williams in the approach he has taken to identify employees' positions to be made redundant.[29]

• [90] Despite the above conclusions, I have not been satisfied that Mr Rakhiani's dismissal was a genuine redundancy because of AECOM's failure to comply with the consultation obligations under the Professional Employees Award. This is a relevant factor to be considered.[30]

• [91] Because of this failure, I have found Mr Rakhiani was not properly notified or consulted with about the decision to make his role redundant. I have also found he was not provided with an adequate amount of time to identify potential redeployment opportunities.

• [92] These are not mere technical failings as the Respondent submits.[31] This is a serious defect, and if the circumstances of these case where different and had I been satisfied the outcome of consultation were less predictable because the business was in a different operating environment it would likely weigh in favour of a finding the dismissal was, on balance, unfair.

• [93] It is clear to me Mr Rakhiani could and should have been afforded more time to consider his position, seek advice and comprehend what he was being told and reasons put forward by the Respondent for its decision. That he was not has only added to pressure and distress he has been put under by being told he could, and ultimately did, lose his job. Had Ms Ferguson taken the time to meet with Mr Rakhiani as proposed on the 5th of June, much distress and resentment may have been avoided. The fact that this was not the case, has left Mr Rakhiani feeling singled out and unfairly treated.

• [94] Ultimately, however, while I have consider these factors, I am satisfied that the weight of evidence in this case supports a conclusion that even if Mr Rakhiani had more time to consider redeployment opportunities and was adequately consulted, it is still more likely than not he would have been dismissed in any event because of the operational challenges confronting the business and the changes it had decided to make as a consequence.

• [95] I consider these other factors weigh in favour of a finding the dismissal was fair.

• [96] While I am satisfied the other factors weigh in the Applicant's favour that there was an element of unfairness to how he was dismissed, my determination requires a consideration of each matter specified by s.387 to reach a conclusion.

• [97] I have not been satisfied Mr Rakhiani's dismissal was a case of genuine redundancy because the consultation obligations in the relevant modern Award were not complied with.

• [98] I have considered whether Mr Rakhiani was unfairly dismissed and made findings in relation to each matter specified in s.387 of the Act as relevant and given each due weight in determining whether the termination was harsh, unjust or unreasonable. Two factors weigh in favour of the Respondent, and one factor weighs in favour of Mr Rakhiani. All other factors are neutral or not relevant considerations.

• [99] In weighing these findings, considering all the circumstances and evidence in this case, I am not satisfied that Mr Rakhiani has been unfairly dismissed.

• [100] Accordingly, the application is dismissed.

[1] Transcript of Proceedings on 20 October 2024, PN488 and 'Microsoft Teams Chat with Travis Martin, Digital Hearing Book ('DHB') p.109.

[4] Statement of Travis Martin, DCB p.271-272.

[5] 'Redundancy Documents combined', DCB p.125.

[6] Applicant's Second Reply to Respondent's Statement, DCB p.236-264, PN180-194.

[9] [1995] IRCA 292; (1995) 60 IR 304. See also the Explanatory Memorandum to the Fair Work Bill 2008 at [1546]-[1553] and the Full Bench Decision in UES v Leevan Harvey [2012] FWAFB 5241.

[12] Ulan Coal Mines Limited v Honeysett and others (Ulan No.2) [2010] FWAFB 7578.

[14] Applicant's Outline of Argument: Merits, DCB p.27.

[16] Ibid and Annexure A to Form F3 Employer Response, DCB p.248.

[17] See Helensburg Coal Pty Ltd v Bartley [2025] HCA 29 and also Paul Huang v Forgacs Engineering Pty Ltd (Forgacs) [2014] FWC 2264.

[19] See Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239.

[21] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[23] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[24] See UES Pty Ltd v Lee Harvey [2012] FWAFB 5241.

[25] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[26] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].

[27] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[29] See also UES Pty Ltd v Lee Harvey [2012] FWAFB 5241.

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