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[186]
[2025] FWC 3330
General information, not legal advice.
Fair Work Commission
2025-11-05
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - jurisdictional objection - whether genuine redundancy - jurisdictional objection upheld - dismissal not unfair - application dismissed.
The NDIS Code of Conduct applies to all NDIS providers, registered and unregistered, and all persons employed or otherwise engaged by an NDIS provider. In providing supports or services to people with disability, a person covered by the Code must:
Outcome: Each participant accesses supports that respect and protect their dignity and
To achieve this outcome, the following indicators should be demonstrated:
As discussed with you today, 27 June 2025, I am writing to confirm our intention to make your position redundant due to operational changes within the business. This has been a difficult decision and follows a thorough review of our staffing structure and the ongoing needs of the business.
Regrettably, your current role of Senior Staff Support Officer is no longer required and will be made redundant. This change is not a reflection of your performance or contribution, but rather a necessary step to realign our workforce with business requirements.
We are committed to working with you during this transition and will explore suitable redeployment opportunities within the organisation. In the meeting today, we have presented you with the option to move to a casual or part-time Disability Support Worker role and welcome you to raise any other suitable redeployment opportunities you feel may be available to you. If no suitable alternative position is available or accepted, your employment will come to an end at the conclusion of your notice period.
In accordance with your employment contract, you are entitled to four (4) weeks' notice. At this stage, your expected final day of employment will be 25 July 2025.
We would like to extend the option for you to shorten your actual working days to 11 July 2025 (2 weeks) and the remaining 2 weeks would be paid to you in lieu. You are also welcome to finish up immediately if that is your preference, with payment in lieu of your entire notice period. Should you choose to accept an alternative internal role or elect to leave earlier, we will discuss those arrangements with you.
Under the SCHADS Award, you are entitled to take up to one day off with pay per week during your notice period to attend job interviews or seek new employment. If you would like to use this entitlement, please let me know so we can coordinate this with minimal disruption to your duties.
As Disability Talk is considered a small business employer under the Fair Work Act 2009 (Cth), you are not entitled to redundancy severance pay.
If your employment ends due to redundancy, you will receive:
We will provide you with a Statement of Service and are happy to support you with references or job search advice if helpful. I would also like to provide you with further information about support services available to you:
workforceaustralia.gov.au/individuals/coaching/assistance/retrenched-workers
We genuinely appreciate the contribution you have made to Disability Talk and understand this may be a difficult time. If you have any questions or would like to discuss anything further, please reach out.
Thanks for your reply - completely understand that you want all the details before making a decision, and I'm happy to clarify both options for you.
This option provides the most security in terms of employment and entitlements.
This option offers more flexibility if you prefer less structure or want to work around other commitments.
If you're weighing up which option to choose, it may help to consider your preference for job stability versus flexibility, and how much certainty you'd like around your income and work hours each week.
Feel free to reach out if you'd like to talk through either option further - I'm happy to help however I can.
As discussed with you today, 4 July 2025, I am writing to confirm that you have accepted the option to proceed with redundancy in your role as Senior Staff Support Officer following our initial meeting on 27 June 2025. This letter outlines the agreement made in our meeting today about next steps.
You have nominated to finish up at the close of business today, 4 July 2025, which we are happy to facilitate. We ask that you provide us with appropriate handover of your duties before you finish up for the day, which may include but is not limited to, participant information, progress reports, and duties currently in progress.
In regard to the company property you have in your possession, we have agreed that you will return all items on Monday 7th July 2025 directly to Christine. We will provide you with confirmation of the items assigned to you in the email in which you have received this letter. If for whatever reason you are unable to return the items on this agreed date, please notify us immediately to arrange an alternative time.
As mentioned in our last letter, you are entitled to four (4) weeks' notice. Please rest assured that your decision to finish up immediately does not reduce the notice payable to you.
Within 7 days of this letter, you will be paid the following final entitlements. We have included an appendix to this letter with estimated pre-tax figures.
Alongside this letter, we have attached a Statement of Service to assist you in your job search.
I am writing to let you know that today is my last day at Disability Talk.
It has been a genuine pleasure working with you and I want to thank you for the time we spent together. I truly wish you all the best moving forward.
If you wish to stay in touch as part of your Choice and Control, you are welcome to contact me at: --------------------------- (redacted)
You may hear from me again in the near future and I look forward to staying connected if that is your choice.
I am writing to you in relation to serious concerns that have come to our attention regarding your conduct during the redundancy consultation process and prior to the formal confirmation of your redundancy shortly after 1pm on 4 July 2025.
We have identified that you contacted participants of Disability Talk to inform them of your departure prior to any formal decision being communicated by the business. This contact occurred despite clear written directions provided to you on 27 June 2025 via email not to discuss the redundancy process or any potential outcomes with staff or client until the company had the opportunity to manage these communications appropriately.
Further, it has been brought to our attention that in these communications you provided your personal contact details to participants and indicated you would remain available to them, which is inconsistent with your ongoing obligations of confidentiality, non-solicitation, and compliance with the NDIS Code of Conduct.
We consider these actions to be in potential breach of:
● Clause 20 (Confidentiality) of your Employment Agreement;
● Clause 24 (Post-Employment Restraints) of your Employment Agreement;
● The NDIS Code of Conduct, specifically the requirements to maintain privacy, professional boundaries, and act with integrity; and
● The lawful and reasonable directions provided to you by Disability Talk.
At the time these actions occurred, your employment had not yet been formally terminated, and you remained bound by your contractual obligations and our workplace policies.
We are treating this matter with the utmost seriousness. As such, we are commencing an investigation into this conduct, which may result in disciplinary action up to and including summary dismissal for serious misconduct. This will have impacts on the notice payable to you that was advised during the redundancy consultation process.
To ensure a fair process, you are invited to a meeting to discuss these concerns and to provide any explanation or response you wish to offer before any decision is made. The details of the meeting are as follows:
Location: Google Meet video call link: https://meet.google.com/aia-xjom-spv
You are entitled to have a support person present during this meeting if you wish.
No final decision has been made at this time. We will carefully consider your response before determining any outcome. In the meantime, we direct you to refrain from any further contact with Disability Talk participants, staff, or stakeholders.
I confirm that I sent a farewell email to the participants I was supporting, simply to inform them of my last day working with Disability Talk. This is standard professional practice when concluding a working relationship with clients.
In my message, I did not mention any reasons for my departure. I only provided my personal email address should any participant choose to contact me in the future. To my understanding, NDIS participants have the right to communicate with past providers as part of their Choice and Control under the NDIS framework.
I sincerely hope this matter is not being used as a reason to delay or withhold my final payment, as previously agreed. Should this happen, please be aware that I will take appropriate steps to address the situation.
Lastly, I will not be attending any further meetings as my employment with Disability Talk officially ended on Friday, 4th July at 5:00 PM.
At the time the participants received my farewell email, my decision to accept the redundancy offer had already been made and was final. The only remaining step was to formally notify the organisation, which I did. I initially followed instructions not to contact clients.
However, I was later informed that inaccurate and inappropriate information was being shared with them, including claims that I was unwell or dealing with personal issues.
This information is entirely false, and I consider it defamatory. Furthermore, disclosing personal information - especially when untrue - about a staff member is a serious breach of privacy and professional standards. Given this, I chose to give participants the opportunity to hear directly from me, should they wish to do so. It was never my intention to initiate or promote ongoing contact.
Your actions not only breached confidentiality but also had the potential to cause unnecessary distress to participants by misrepresenting the situation. I believe it was entirely appropriate to offer a respectful and honest farewell in response.
As a reminder, my employment officially ended on Friday, 4 July, when I formally accepted the redundancy offer. Therefore, any further dismissal procedures are irrelevant and inappropriate.
If you believe further steps are necessary, you are entitled to proceed. I will do the same, using all available information and evidence. I also wish to remind you that my final payment is due within seven days of confirming the redundancy agreement. Delaying this would be a breach of my legal entitlement.
I trust this matter will be resolved promptly and professionally.
We write to advise you of the outcome of the recent disciplinary investigation into your conduct during the redundancy consultation process. This letter sets out our findings, responds to the points raised in your recent correspondence, and confirms the finalisation of your employment with Disability Talk.
On 27 June 2025, Disability Talk commenced a genuine redundancy consultation process with you, including offering redeployment opportunities which you were given time to consider. At your request, we delayed the finalisation meeting until 7 days later on 4 July 2025.
Our investigation has established that before formal confirmation, and while you were still actively employed, you sent an unauthorised farewell email to 12 participants of Disability Talk (N.B. Please consider this a correction to previous email communication which had a typing error indicating 13 participants were contacted).
The farewell email you sent was timestamped at 1:00 PM on 4 July 2025, approximately 20 minutes before you verbally confirmed your acceptance of redundancy during our meeting at approximately 1:20pm that day. We appreciate there were connection issues which prevented the meeting from progressing immediately, however, it is clear that this email was sent before you joined the original meeting link at 1pm. This timing is important, as it demonstrates that at the point you contacted participants, no formal decision had been made, and you remained employed and bound by the lawful and reasonable instructions in place. The Fair Work Regulations 2009 (Cth) determines that this conduct is grounds for dismissal on the basis of serious misconduct under regulation 1.07(2)(e) - "refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment" - which is further reflected in your Employment Agreement in clauses 5.2(e) and 22.4(a).
It is noted that during the finalisation meeting, you were once again reminded not to contact any staff, participants, or stakeholders of Disability Talk until the business had made a formal announcement. You did not notify or advise us that you had already done so before joining the meeting, which we consider to be a willing deception.
Your conduct on this occasion was in direct breach of clear and lawful instructions provided to you in writing via email on 27 June 2025, which expressly directed you not to communicate with participants or staff regarding your employment status until the business was able to manage this messaging appropriately.
In your recent correspondence, you have suggested that participants were informed that you were unwell or dealing with personal issues, and that this constituted defamation. We reject this assertion. At no time did the business communicate such information to staff or participants. The only information shared was that you were unavailable, which was accurate and appropriate given you had not indicated you were working and had been offered time to consider your employment options.
You also stated that you continued working to the best of your ability during this period. While we acknowledge that you forwarded a small number of emails, at no stage did you confirm to the business that you were actively working or available for duties. In fact, during a phone call at 3:18pm on 2 July 2025 with our HR representative, you advised that you had not been working at all that week. Additionally, your system access was temporarily restricted as a precaution due to a cyber security incident that affected all employees equally, not as a result of the consultation process or any decision specifically related to your role.
Finally, you have stated that ongoing communication from Disability Talk constitutes harassment. We must respectfully clarify that any contact from the business has been strictly limited to fulfilling our legal and procedural obligations, including offering you the opportunity to respond to serious allegations before reaching a decision.
After carefully considering all information, including your written responses, Disability Talk has determined that your actions constitute serious misconduct. This decision is based on:
Accordingly, the reason for termination of your employment has been revised on the grounds of serious misconduct, effective 4 July 2025. Please consider previous confirmation that your role was terminated by way of redundancy as null and void.
In line with section 123(1)(b) of the Fair Work Act 2009 (Cth), no notice period or payment in lieu of notice applies. You remain entitled to:
Your final payment will be processed in accordance with these entitlements and provided to you within the required timeframes.
Please be advised that Disability Talk takes its legal, ethical, and privacy obligations seriously. We will take any further steps necessary to protect the organisation, its participants, and its reputation, including legal action if required.
This letter confirms the conclusion of this process. Should you have any final questions relating to your entitlements, you may contact us in writing.
(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.
(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 dismissal a case 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."
Was the Applicant's job no longer required - s.389(1)(a)?
"[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] IRCA 292; (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."[33] (references omitted)
(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.
Did the Respondent comply with any consultation obligations - s 389(1)(b)?
8.1 If an 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 the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
8.2 For the purposes of the discussion under clause 8.1(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.
8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.
8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).
significant effects, on employees, includes any of the following:
(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
(f) the need for employees to be retrained or transferred to other work or locations; or
Would it have been reasonable to re-deploy the Applicant - s 389(2)?
(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 covered in her employment by the SCHADS Award which contained consultation obligations that were complied with; and
(iii) it would not have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent's enterprise.
[1] Exhibit R4, Disability Support Worker Employment Contract, dated 21 June 2022
[2] Exhibit R6, Staff Support Officer Employment Contract, dated 25 August 2023
[3] Exhibit R7, Senior Staff Support Officer Employment Contract, dated 8 January 2025
[4] Exhibit R8, Senior Staff Support Officer Position Description
[6] Exhibit R2, NDIS Code of Conduct, dated 21 June 2022
[7] Exhibit R3, Disability Talk Code of Conduct, dated 21 June 2022
[8] Exhibit R7, clauses 20.1, 20.3, 20.6(d)
[10] Exhibit R3, Disability Talk Code of Conduct, clause 7
[11] Exhibit R5, NDIS Practice Standards, dated January 2020
[12] Exhibit R1, First Witness Statement of Christine Porta, at [4]-[6], Exhibit R38, Correspondence from Rubino Associates, Dated 9 October 2025, Exhibit R39, Lost participant funding
[15] Exhibit R10, Email to Applicant, dated 26 June 2025. Titled 'Invitation to Meeting - Disability Talk'
[17] Exhibit R12, Email from Ruby Twyman to Applicant, dated 27 June 2025, titled 'Notice and Confirmation of Discussion'
[18] Exhibit R13, Letter to Applicant, dated 27 June 2025, titled 'Notice of Intention - Role Redundancy'
[19] Exhibit R12, Email exchange between Applicant and Ruby Twyman, dated 27 June 2025
[20] Exhibit R12, Email exchange between Applicant and Ruby Twyman, dated 30 June 2025
[22] Exhibit R17, Email from Ruby Twyman to Applicant, dated 4 July 2025
[23] Exhibit R28, Email from Christine Porta to Ruby Twyman, dated 27 August 2025
[24] Exhibit R20, Email from Applicant, sent at 1.00pm on 4 July 2025
[26] Exhibit R23, Email from Ruby Twyman, dated 7 July 2025, titled 'Notice of Investigation'
[27] Exhibit R23, Email from Applicant to Ruby Twyman, dated 9 July 2025, titled 'Notice of Investigation'
[28] Exhibit R23, Email from Ruby Twyman to Applicant, at 10.11am on 10 July 2025
[29] Exhibit R23, Email from Applicant to Ruby Twyman, sent at 11.11am 10 July 2025
[30] Exhibit R23, Email from Ruby Twyman, dated 11 July 2025
[31] Exhibit R25, Letter to Applicant, dated 11 July 2025, titled 'Outcome of Disciplinary Investigation - Termination for Serious Misconduct'
[34] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C,
12 November 2010) at para. 26, [(2010) 199 IR 363].
[35] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Ross J, Booth DP, Bissett C, 29 January 2014) at para. 36, [(2014) 240 IR 130].
[36] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C,
1 Printed by authority of the Commonwealth Government Printer
2 November 2010) at para. 28, [(2010) 199 IR 363].
Mrs Alma Garcia-Martinez
Disability Talk Pty Ltd [2025] FWC 3330
(1995) 60 IR 304
(2014) 240 IR 130
(2010) 199 IR 363