Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - whether termination was a genuine redundancy - redundancy not genuine - jurisdictional objection dismissed - whether dismissal unfair - dismissal harsh, unjust and/or unreasonable - compensation awarded.

• [1] On 14 February 2025, Ms Sonia Tyndale (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer, Freerange Future Pty Ltd (the Respondent or Freerange). At the time of her dismissal, the Applicant was engaged as a full time Account Manager at a salary of $80,000.00 per annum.

• [2] On 21 March 2025, my Chambers issued a Notice of Listing to the parties advising a Jurisdictional & Merits Hearing was listed on 30 April 2025 and provided Directions for the filing of material.

• [3] On 17 April 2025, the parties participated in a Member Assisted Conciliation before Deputy President Clancy. The matter was unable to be resolved.

• [4] The Applicant filed submissions, a witness statement and gave evidence. Freerange submitted submissions, a witness statement and reply statement from Mr Nicholas Crowther (Managing Director) who also gave evidence.

• [5] The material filed was collated into a Digital Court Book (DCB) and distributed to the parties prior to the Hearing. The entirety of the DCB was received into evidence, with appropriate weight given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).

• [6] A Hearing was conducted on 30 April 2025. Ms Tyndale represented herself, the Respondent was represented by Mr J Catchpole (of Counsel). Permission was granted pursuant to s.596(2) of the Act on the grounds of complexity and efficiency. In order to mitigate my decision to grant permission for the Respondent to be represented, the Hearing was conducted as a Determinative Conference.

• [7] The Respondent contends that the Applicant's dismissal was a case of genuine redundancy within the meaning of s.389 of the Act (by way of its jurisdictional objection), and in the alternative, that the Applicant has not been unfairly dismissed.

• [8] The Applicant disputes the characterisation of her dismissal as a genuine redundancy, and contends that her dismissal was unfair, and seeks compensation.

• [9] Section 389 of the Act details the meaning of genuine redundancy and is relevant to the Respondent's jurisdictional objection:

389(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.

389(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."

Changes in the operational requirements of the employer's enterprise [s.389(1)(a)]

• [10] Mr Crowther gave evidence that Freerange is a creative marketing agency based in Adelaide who provides marketing, website, branding and graphic design services, primarily to charities and non-profit organisations. At the time of the dismissal, Freerange had 9 employees.

• [11] Mr Crowther advised that in the first quarter of the 2024/25 Financial Year Freerange reported a loss on $86,335.00. During the following quarter, there was an improvement to a $4,000.00 profit in October 2024, followed by a $10,600.00 loss in November 2024. On 21 January 2025, Mr Crowther received some draft financial reports which showed Freerange had made a net loss of $78,497.00 on revenue of $370,538.00. [1] Freerange had entered into a payment plan with the Australian Tax Office (ATO) to pay the taxes required from their October Business Activity Statement due to cashflow concerns.

• [12] In mid-January 2025, Mr Crowther reflected on the financial issues and on 28 January 2025 he determined to make Ms Tyndale's position of Account Manager redundant.

• [13] Ms Tyndale was not aware of the detail of the Respondent's financial position and did not contest the evidence given in that respect by Mr Crowther.

• [14] Ms Tyndale accepts that the role requirements were re-distributed to other staff.

• [15] Based on the evidence before me, I accept that Freerange no longer required Ms Tyndale's role to be performed by anyone because of changes in Freerange's financial position and the need to reduce costs.

• [16] Ms Tyndale submits that her role as Account Manager was covered by Level 4 or 5 of the Clerks - Private Sector Award 2020 (the Award).[2]

• [17] The work performed by Ms Tyndale prior to her dismissal included:

• Coordinating the migration of numerous client websites in collaboration with the developer.

• Interpreting and translating technical information for clients to ensure clarity and alignment.

• Project coordination, task creation and management, quoting, client communication, documentation, roadmap development; and

• Scheduling and leading regular client zoom meetings, design and development QA, preparing meeting agendas and minutes, providing design feedback, and managing content updates.

• [18] Freerange disputes that a modern award covers the work performed by Ms Tyndale and there is no requirement to consult. In the alternative, the Respondent contended that the consultation requirements in the Clerks - Private Sector Award 2020 and/or the Miscellaneous Award 2020 were met. Neither party suggested that Ms Tyndale was covered by an Enterprise Agreement.

• [19] Based on the work performed by Ms Tyndale, I am not persuaded that Ms Tyndale's Account Manager role was 'wholly or principally engaged in clerical work' and thus does not fall within the Clerks - Private Sector Award 2020. It appears to me that the Respondent is engaged in what can be broadly described as 'Public Relations' and as result of Clause 4.2 of the Miscellaneous Award 2020, that Award would not cover the Applicant's work_._

• [20] I find that the requirements of s.389(1)(b) have been met.

• [21] The Respondent contends there were no reasonable redeployment options available at the time of the Applicant's dismissal and in any event, the Applicant did not have the skills, qualifications and experience to perform the role and retraining was unreasonable in the circumstances.
• [22] The Applicant contends she should have been offered the role of Senior Brand Designer.

• [23] The decision of Pettet and Ors v Mt Arthur Coal Pty Ltd[3] sets out the relevant considerations in relation to s.389(2)(a) of the Act as follows:

[6] The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett[4] and Technical and Further Education Commission t/a TAFE NSW v Pykett[5]. Those principles were summarised in Huang v Forgacs Engineering Pty Limited[6] as follows:

"(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

(2) The question is concerned with circumstances which pertained at the time of the dismissal.

(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.

(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job and the remuneration which it offered."

• [24] In assessing whether redeployment was possible in Ulan Coal Mines Limited v Honeysett and others (Ulan No. 2) the Full Bench said:

"...It is an essential part of the concept of redeployment under s.389(2) that a redundant employee be placed into another job in the employer's enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard." (emphasis added)".[7]

What were Ms Tyndale's skills, qualifications and experience?

• [25] The critical question as to whether redeployment was reasonable in the circumstances falls on whether or not Ms Tyndale had the skills, qualifications and experience for the Senior Designer role immediately or with a reasonable period of retraining.

• [26] Ms Tyndale gave evidence that she held an Advanced Diploma in Graphic Design and Advertising and had extensive experience in graphic design, design co-ordination and client facing communication. The Applicant had performed work of a similar nature required for the Brand Designer role with Snowy's prior to joining Freerange. The Applicant had previously led creative teams and collaborated with developers, designers and strategists and contended that her multi-disciplinary experience supported her capacity to undertake the Senior Brand Designer role. Ms Tyndale contended that the role with the Respondent required her to manage stakeholders and that the Respondent's suggestion that she did not have the 'soft skills' was an attempt to rationalise its decision not to consider her for redeployment into that role. Ms Tyndale gave evidence that she possessed additional skills which whilst not required in her current position were relevant to the Senior Brand Designer role.

• [27] During his evidence Mr Crowther conceded that his mind was made up before he met with Ms Tyndale and that the consultation was perfunctory. This included the conclusion that Ms Tyndale was not a suitable candidate for redeployment into the Senior Brand Designer role.

• [28] Mr Crowther considered that Ms Tyndale did not have the skills to step up to the role of Senior Brand Designer. Mr Crowther advised that the Senior Brand Designer role involves specialist skills including representing the values and persona of an organisation though succinct visual communication and applying the values and persona across all media. Mr Crowther contended that Ms Tyndale had general design skills, but these fell short of the specialist skills needed. Mr Crowther's observations of Ms Tyndale led him to believe she lacked the 'soft skills' required for the role including strategic thinking and presenting to clients. Mr Crowther felt that Ms Tyndale would not (whilst making a presentation) take CEOs and/or board members 'on a journey.' Mr Crowther also provided a single example where he contended Ms Tyndale took constructive feedback as a personal criticism.

• [29] Mr Crowther had only seen Ms Tyndale's resume when she first applied for employment. That resume was focussed on the Account Manager role. Mr Crowther had not seen a portfolio of her design work. Had Mr Crowther not prematurely excluded Ms Tyndale from consideration the Applicant may have well satisfied his concerns about skill or experience gaps. Despite this, Mr Crowther's evidence was that he could have not done anything better to determine Ms Tynedale's suitability for the Senior Brand Designer role. I respectfully disagree.

• [30] Despite the Respondent's concerns about Ms Tyndale's capacity to undertake the Senior Brand Designer role, on 4 February 2025, Mr Crowther provided Ms Tyndale an effusive reference[8] lauding her '....expertise in client management, overseeing project workflows, and coordinating with a remote development and design team...." and '.... her ability to collaborate across disciplines, communicate effectively, and manage projects with precision to ensure successful and timely project launches' and '.... Foster[ing] a positive and productive work environment, ensuring high-quality outcomes while balancing client needs and internal objectives [with] her adaptability and commitment have been evident in every project she undertook." Mr Crowther now describes that reference as 'generous'. Having had the opportunity to observe the Applicant present and argue her case, I am not persuaded that the Mr Crowther's reference was at all 'generous.'

• [31] The decision by Mr Crowther to self-fetter a redeployment offer based on his own judgement with absolutely no consultation was a poor decision. The far safer option would have been to invite the Applicant to apply the role, allow her to put her case forward and consider her on merit. That process would also have allowed an opportunity to discuss any skill gaps and whether further training could allow any gap to be filled within a reasonable timeframe. That is a much more preferable approach than to reconstruct the facts post dismissal in order to justify the exclusion of Ms Tyndale from consideration of the Senior Brand Design role as appears to have been the case here. I formed the view that Mr Crowther had a predetermined plan to remove Ms Tyndale and engage a new Senior Brand Designer, hence his acceptance that the consultation was perfunctory.

• [32] In this case I am persuaded that Ms Tyndale held the majority of the skills to perform the Senior Brand Designer role and whilst she may have needed some support and/or coaching initially_,_ it would have been reasonable in all the circumstances for Ms Tyndale to be redeployed in that role.

• [33] I find that Freerange did not meet the requirements of s.389(2) of the Act.

• [34] Having considered each of the factors detailed in s.389 of the Act, I have concluded that the dismissal of Ms Tyndale was not a genuine redundancy as defined.

• [35] The Respondent did not contend that the dismissal was consistent with the Small Business Fair Dismissal Code.

• [36] I now turn to the requirements of s.387 of the Act.

Was the dismissal harsh unjust or unreasonable?

• [37] Section 387 of the Act details the criteria for whether a dismissal was harsh, unjust or unreasonable

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."

• [38] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd.[9]

• [39] I have found that Freerange no longer required Ms Tyndale's job to be performed by anyone because of changes in Freerange's financial position and the need to reduce costs. This is a valid reason for a dismissal.

• [40] However, I have also found that it would have been reasonable in all the circumstances for Ms Tyndale to be redeployed in the Senior Brand Designer role which was available at the time her dismissal was being contemplated. Whilst I accept that Ms Tyndale would have required a period to meet all of the requirements of the role, in my view that period would not have been greater that 3 months which I believe is reasonable in all the circumstances. It is the failure of the Respondent to redeploy Ms Tyndale in accordance with s.389(2) which makes the dismissal unfair.

• [41] Ms Tyndale was advised that her role would cease by way of redundancy. Whilst I have accepted that the reason for the redundancy met the requirements of s.389(1)(b) of the Act, the Respondent failed to offer redeployment in circumstances where it would have been reasonable in all the circumstances for Ms Tyndale to be redeployed in that role. This makes the dismissal harsh, unjust and/or unreasonable.

• [42] Ms Tyndale was consulted about the reason for her dismissal but was not consulted about the available redeployment role as the Respondent had unreasonably determined to preclude Ms Tyndale from consideration.

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

• [43] There is no evidence before me that Ms Tyndale requested to have a support person present.

Warnings relative to unsatisfactory performance - s.387(e)

• [44] The termination was not based on unsatisfactory work performance.

Size of the employer's enterprise and absence of dedicated human resources support - ss.387(g) and (f)

• [45] Freerange is a small business employer with no dedicated human resources support. Whilst I accept Freerange had no internal human resources support, its approach in knowingly denying Ms Tyndale any possibility of moving to an alternative role without consultation should have been obviously unfair.

• [46] The Applicant was paid 4 weeks' notice, no redundancy entitlement arose as the Respondent is a small business.

• [47] The Explanatory Memorandum to the Act[10] explains the approach of the Commission in considering the elements of section 387:

"FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative."

• [48] In Byrne and Frew v Australian Airlines Pty Ltd,[11] the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

"It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

• [49] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Ms Tyndale's employment was harsh, unjust and/or unreasonable.

• [50] The relevant provisions of Division 4 of Part 3-2 of the Act state:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

• [51] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

• [52] Ms Tyndale did not seek reinstatement and I am satisfied that it is not appropriate in this case.

• [53] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

• [54] I now turn to whether compensation in lieu of reinstatement is appropriate.

• [55] A recent Full Bench in McCulloch v Calvary Health Care Adelaide[12] confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul's Licensed Festival Supermarket[13] remains appropriate.

• [56] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,[14] it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(a)

• [57] Whilst there was evidence before me that Freerange was suffering a worsened financial position, I note that the business continues to operate and at the time of the Hearing it continued to employ an employee in the Senior Design Brand Designer role. There was no submission that the compensation awarded will threaten the viability of Freerange.

The length of Ms Tyndale service with the employer - s.392(b)

• [58] Ms Tyndale was employed by Freerange from 18 October 2023 to 31 January 2025.

The remuneration Ms Tyndale would have received, or would have been likely to receive, if he had not been dismissed - s.392(c)

• [59] Ms Tyndale's work performance was the subject of positive comment.

• [60] Ms Tyndale sought to be redeployed in the Senior Brand Designer role and appears to have the skills and experience to perform the majority of the elements. I accept the role was more senior to the design roles held by Ms Tyndale previously. I accept that there is a possibility that Ms Tyndale may not have met all the requirements of the role within a reasonable period.

• [61] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Ms Tyndale would have undertaken the Senior Brand Designer role for a period of 15 weeks had she not been dismissed. In light of possibility that Ms Tyndale may not have met the Respondent's requirements for the role, I propose to discount the period by 33% to 10 weeks.

The efforts of Ms Tyndale to mitigate the loss suffered by him because of the dismissal - s.392(d)

• [62] At the time of the Hearing, Ms Tyndale was making reasonable efforts to secure alternative employment. I am not persuaded that the award of compensation should be discounted as a result of her not yet securing alternative employment.

Remuneration earned by Ms Tyndale during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Ms Tyndale during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

• [63] Ms Tyndale had not secured paid work. No discount to the compensation awarded arises from this.

Any other matter that the FWC considers relevant and the remaining statutory parameters - s.392(g)

• [64] No discount arises as a result of any misconduct by Ms Tyndale.

• [65] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

• [66] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal.[15] The amount of compensation awarded is less than this limit.

• [67] Taxation is to be paid on the amount determined.

• [68] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.[16]

• [69] I award compensation in the amount of $15,3846 (or 10 weeks pay). The Respondent did not seek any additional time to pay this amount and thus I will allow a period of 28 days.

• [70] An Order[17] reflecting this decision will be issued.

[1] A copy of the supporting accounts were provided which showed a significant decline in service income.

[2] Clerks - Private Sector Award 2020 [MA000065].

[3] Pettet and Ors v Mt Arthur Coal Pty Ltd [2015] FWC 2851.

[4] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578, 199 IR 36.

[5] Technical and Further Education Commission t/a TAFE NSW v Pykett [2014] FWCFB 714, 240 IR 130.

[6] Huang v Forgacs Engineering Pty Limited [2014] FWC 2264 at [34].

[7] Ulan Coal Mines Limited v Honeysett and others (Ulan No. 2).

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

[10] Explanatory Memorandum to the Fair Work Bill 2008.

[11] Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.

[12] McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873.

[13] Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

[14] Smith and Others v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446.

[16] Smith and Others v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at par [32].

[17] PR790248.

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