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[2026] FWC 175
General information, not legal advice.
Fair Work Commission
2026-01-20
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
The Hospitals Contribution Fund of Australia Ltd
Application for an unfair dismissal remedy - objection that dismissal was a case of genuine redundancy - section 389 - whether job required to be performed by anyone - whether compliance with consultation obligations in Modern Award - whether reasonable in all the circumstances for applicant to be redeployed
[1] This decision concerns an application by Mr. Shaun Prakash for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth)(Act) for what Mr. Prakash alleges was the unfair dismissal from his employment with his previous employer, The Hospitals Contribution Fund of Australia Ltd (HCF or respondent). Mr. Prakash's employment with HCF came to an end on 18 September 2024 as a result of what HCF said was a case of genuine redundancy. 'Genuine redundancy' is defined for the purposes of Part 3-2 of the Act in s.389. Mr. Prakash disputed HCF's claim that his dismissal was a case of genuine redundancy within the meaning of s.389 of the Act.
[3] Section 389 of the Act provides as follows:
(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.
[4] The parties were at odds in relation to each of the elements of s.389 however the facts surrounding the termination of the applicant's employment were largely uncontested. The applicant was the subject of only limited cross-examination. The evidence of the respondent was given by Ms. Peel, who holds the title of People and Culture Business Partner, and Ms. De Vault who is the respondent's Head of Contact Centre Sales. The applicant did not cross-examine either of the respondent's witnesses and their evidence was admitted unchallenged.
[5] The applicant contended that the dismissal was not a case of genuine redundancy. He argued that his role continued in substance and was simply transferred to a newly created role. He referred to the fact that the newly created position had been advertised externally. He said that his redundancy was inconsistent with previous assurances from Ms. De Vault that his position was 'safe'. He said that consultation obligations had not been met because he was not provided with the position description for the newly created position and had not been allowed to apply for the position. He said that other work colleagues were made aware of his redundancy before he was. The applicant also referred to being excluded from meetings and being 'locked out' during the final consultation meeting.
[6] The evidence of the respondent's witnesses establishes the following background facts:
(i) The respondent is a not-for-profit organisation that provides health insurance in Australia. The respondent merged with another health fund, Railway and Transport Health Fund (RT Health) in November 2021.
(ii) The respondent's long-term strategy was to fully integrate RT Health into the respondent's enterprise. Upon the acquisition of RT Health, some teams within RT Health immediately integrated into the respondent's existing equivalent teams, including the people and culture, finance and risk teams. However, there were some RT Health teams that the respondent had not yet fully integrated into the respondent's equivalent team. This included but is not limited to, the RT Health Member Growth and Retention team.
(iii) Between 20 September 2022 and 18 September 2025, the applicant was employed in the position of Manager, RT Health Member Growth and Retention. Ms. De Vault is responsible for the RT Health Member Growth and Retention team.
[7] The respondent contended that the applicant's dismissal was a case of genuine redundancy in that the respondent no longer required the applicant's job to be performed by anyone because of changes to the operational requirements of the respondent's business. On the basis of the unchallenged evidence of the respondent's witnesses and the evidence of applicant himself, I am satisfied of the following matters:
(i) In mid-July 2025 it was proposed that Ms. De Vault be tasked with integrating the RT Health Member Growth and Retention team into the Contact Centre Sales team.
(ii) On 14 July 2025 the applicant was advised of the proposed restructure and merger by the General Manager RT Health.
(iii) Ms. De Vault conducted a review of the Contact Centre Sales team structure, workloads and roles and responsibilities along with the Contact Centre Sales team's overarching sales strategy. In the course of the review, Ms De Vault identified that the applicant's role was no longer required, principally because she formed the view that it would be feasible and more efficient for the applicant's role to be absorbed into the other team leader roles within the Contact Centre Sales team.
(iv) Ms. De Vault determined that it would be efficient to create a new role to be called Contact Centre Sales Manager.
(v) Ms. De Vault prepared a business case for the restructure and submitted it on 20 August 2025. On 1 September 2025, Ms De Vault's business case for the restructure was approved and the following day she commenced consultation with the applicant.
(vi) The consultation process occurred over the period 2 September to 17 September 2025. On 18 September 2025, Ms De Vault dismissed the applicant because his job was no longer required to be performed by anyone. Since the applicant was dismissed, the respondent no longer employs anyone in the role of RT Health Member Growth and Retention. The duties the applicant performed in that role have been absorbed into other positions.
The first part of s 389(1)(a) turns on the existence of a decision in fact made by an employer. It is the employer's decision to no longer require a person's job to be performed by anyone. The provision does not look to whether the employee's position, in terms of job title, was no longer required, but whether their "job", in the sense of the nature of the work they performed, was no longer required. Section 389(1) refers to a decision by the employer and no one else.
The second part of s 389(1)(a) provides that the job must have ceased to be needed "because of changes in the operational requirements of the employer's enterprise". An employer determines what those changes might be or if they are needed. There is no reasonableness inquiry in s 389(1). Therefore, the fact that the employer, due to changes in operational requirements, no longer required the work to be performed by anyone need not have been reasonable.[4]
[10] The respondent indicated that it was content for the Commission to assume that the Banking, Finance and Insurance Industry Award 2020 (Award) applied to the applicant's employment. I propose to adopt that course noting that the applicant did not contend that there was some other source of consultation obligation for the purpose of s.389(1)(b).
[11] The Award includes consultation obligations at clause 28 in the following terms:
(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):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
[12] The respondent's evidence establishes the following in relation to the consultation process:
(i) The respondent made a definite decision about the proposed redundancy on 1 September 2025.
(ii) The next day, Ms. De Vault invited the applicant to attend a meeting with herself and Ms. Peel on the following day to notify of a workplace change and commence consultation. Ms. De Vault then sent an email invitation to the applicant.
(iii) The applicant attended a consultation meeting with Ms. De Vault and Ms. Peel at 11am on 3 September 2025. The respondent gave notice of the changes to the applicant, being that:
(a) A decision had been made to absorb his duties into other positions.
(b) As a result of the restructure, his role was no longer required to be performed by anyone.
(c) His employment would be terminated by reason of redundancy if no alternative role could be found for him.
(iv) The respondent discussed with the applicant the introduction of the changes, the likely effect on him and measures to avoid or reduce the adverse effects of the changes on employees. This occurred by:
(a) explaining the likely effect of the decision (if no suitable redeployment was found), would mean his employment would be terminated;
(b) explaining that a consultation period would commence from the day of the meeting for a period of 5 business days until the close of business on 10 September 2025 to consult with the applicant about the changes and work with him to explore whether any steps could be taken to avert or mitigate any adverse effect of the changes on the applicant, including redeployment; and
(c) offering him the opportunity to provide any feedback, questions and preferences around redeployment during the consultation period.
(v) The discussions commenced as soon as practicable, being the next day after the decision was made.
(vi) The respondent gave to the applicant all relevant information about the changes in writing including the matters referred to in clause 28.2 of the Award.
(vii) At 12:11pm on 3 September 2025, Ms. De Vault emailed the applicant providing details of what was discussed during the consultation meeting, including the following attachments:
(a) letter confirming the proposed redundancy and consultation period;
(b) estimated details of his severance package, if his employment was to be terminated by reason of redundancy;
(c) information about the respondent's Employee Assistance Program;
(d) a spreadsheet containing the respondent's national job vacancies; and
(e) details of the respondent's outplacement services.
(viii) At 2:04pm on 3 September 2025, after the consultation meeting had taken place, the applicant sent an email to Ms. De Vault and Ms. Peel raising a number of matters. In summary, the applicant made a series of allegations alleging there was a lack of genuine redundancy, failure to comply with consultation obligations, that redeployment had not been adequately considered and referred to stated assurances of job security and an outstanding complaint to human resources. On 5 September 2025 the applicant sent a further email in which he objected to the limited consultation period, requested a renegotiation of his redundancy payment and sought further clarification of matters raised in the email of 3 September.
(ix) On 8 September Ms. Peel wrote to the applicant granting an extension of the consultation period to 17 September 2025 and responding to the points raised by the applicant. Further exchanges of correspondence between the applicant and Ms. Peel occurred between 8 and 28 September 2025. The applicant did not provide any substantive feedback in relation to the proposed changes or suitable alternative roles. On 17 September 2025 Ms. Peel advised the applicant that the consultation period remained open for him to provide feedback until 5pm on that day.
[14] The respondent contended that it would not have been reasonable to redeploy the applicant within its enterprise or that of an associated entity. I accept that to be the case. The evidence shows that Ms. Peel compiled a list of all available job positions across the respondent's business. In doing so she reviewed all vacancies to determine whether there were suitable redeployment opportunities that could have been offered to the applicant commensurate with his skills, qualifications and remuneration level. A copy of that list was provided to the applicant by email shortly after the meeting on 3 September 2025. This would have provided the applicant with an opportunity to consider potential redeployment options himself and provide feedback to the respondent about the possibility of redeployment. He did not do that and did not express any interest in redeployment during the consultation period. The applicant did not identify any suitable redeployment options. Moreover, on 17 September 2025 the applicant emailed the respondent saying that he "wanted make it, unequivocally clear that I have no interest in being reinstated or redeployed....". The applicant also accepted in cross-examination that by 17 September 2025 his trust and confidence in the respondent had broken down.
[16] In relation to the newly created position of Contact Centre Sales Manager, the applicant was cross-examined about a comparison document prepared by Ms. De Vault which compared the position descriptions of the two roles and which highlighted differences in the complexity and duties and responsibilities of the two roles. The applicant said that there were aspects of the new position that were 'relevant' to or the same as his previous role. He also accepted that there were relevant differences. The unchallenged evidence of Ms. De Vault, which I accept, demonstrates that the roles contained significant differences including the number of employees reporting to each role and the different product lines that the positions were responsible for. Even if the applicant had been interested in redeployment which he expressly said he was not, I accept that the new role was not a reasonable redeployment option having regard to the evidence of Ms. De Vault.
[17] In Helensburgh the majority described the nature of the inquiry required under s. 389(2) as follows:
The word "redeploy" does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment. Indeed, the ordinary meaning of "redeploy" - "to rearrange, reorganise, or transfer" - envisages some reorganisation or rearrangement. In other words, it does not mean that it would only have been reasonable to redeploy the person if there was a vacant position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not refer to a "job". The text of s 389(2) therefore does not, on its face, assume that a job is readily available. Rather, "redeployed" looks to whether there was work, or a demand for work, within the employer's enterprise or an associated entity's enterprise that could have been performed by the otherwise redundant employee.
Third, the inquiry is whether redeployment "would have been reasonable". The words "would have been" direct the FWC to consider a hypothetical situation. A hypothetical is inherently a consideration of a situation changed from what it was. The use of the past tense directs attention to the situation at the time of the dismissal. The hypothetical inquiry under s 389(2) therefore asks what, at the time of the dismissal, could have been done to redeploy the employee within the employer's enterprise. In other words, would it, at the time of the dismissal, have been reasonable to redeploy the employee to perform other work within the employer's enterprise.[8]
[18] It is difficult to envisage how it would have been reasonable for the respondent to redeploy the applicant in circumstances where, as here, the applicant himself was opposed to redeployment of any kind. The applicant also accepted that the employment relationship had broken down by the time of the dismissal. Even putting those matters to one side, Ms. Peel concluded, and I accept, that there were no suitable redeployment options for the applicant at the time of the dismissal. The evidence does not disclose any other basis on which it can be said that it would have been reasonable in the circumstances to redeploy the applicant within the enterprise or an associated entity thereof. I conclude that it would not have been reasonable in all the circumstances for the applicant to be redeployed within the respondent's enterprise or an associated entity of the respondent's enterprise.
[19] The applicant's dismissal was case of genuine redundancy within the meaning of s.389 of the Act.
Mr P Willink, of counsel, with permission, instructed by Pinsent Masons, on behalf of the respondent.
[4] Ibid at [30], per Gageler CJ, Gordon and Beech-Jones JJ.
[5] See also Jones v. Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 at 308 per Ryan J.
[6] Exhibit R2 at [39] and annexure LD 10.
[7] Exhibit R1 Annexure FP 1, Annexure FP 3 (email 8 September 2025) and Exhibit R2 Annexure LD11.
Printed by authority of the Commonwealth Government Printer
Mr Shaun Prakash
The Hospitals Contribution Fund of Australia Ltd [2026] FWC 175
(1995) 60 IR 304