s.394 - Application for unfair dismissal remedy

[1] On 28 October 2025, Ms Tamili Otton (the Applicant) filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the FW Act), alleging that she was unfairly dismissed by Sunsouth Pty Ltd T/A DANS In Home Care (the Respondent) on 17 October 2025.

[2] In its Form F3 - Employer response to an unfair dismissal application, the Respondent raised a jurisdictional objection to the application on the grounds that the dismissal was a case of genuine redundancy.

[3] The Applicant's employment was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not 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."

[5] By consent of the parties, the jurisdictional objection is being determined on the papers.

[6] This decision only deals with the question of whether the Applicant's dismissal was a case of genuine redundancy.

[7] The Applicant commenced employment with the Respondent on 14 August 2024 as a Casual Care Worker.

[8] On 17 March 2025, the Applicant transitioned to a Permanent Part-Time role, in a newly created position of 'Care Worker - Team Leader'.

[9] In September/October 2025, the Respondent undertook an operational review and determined that the Team Leader position was no longer viable due to operational and financial requirements.

[10] The Respondent conducted a meeting with the Applicant on 8 October 2025, to discuss a proposed organisational restructure and the potential redundancy of the Team Leader role.

[11] A formal consultation meeting was conducted on 13 October 2025. The Applicant attended this meeting with her union representative. During this meeting, the Respondent:

• Notified the Applicant that the Team Leader role was proposed to be made redundant; and
• Offered redeployment into a Permanent Part-Time Aged Care Worker position.

[12] Following the consultation meeting, the Respondent issued a formal consultation letter to the Applicant, confirming the proposed restructure and inviting her to provide feedback and

[13] An outcome meeting was held on 17 October 2025. The Applicant attended with her union representative. During this meeting, the Respondent:

• Confirmed that the Team Leader role would be terminated by way of redundancy;
• Noted that the Applicant declined the offer of redeployment into a Permanent Part-Time Aged Care Worker position; and
• Issued a formal outcome letter confirming termination by reason of redundancy.

[14] The Applicant's Termination Letter, dated 17 October 2025, stated:

We refer to our earlier consultation discussion on 13th October 2025 and our consultation letter dated 9th October, 2025 (Letter), in relation to the workplace changes currently taking place within Sunsouth Pty Ltd (DANS In Home Care).

The purpose of this letter is to confirm that a decision has now been made to implement the Proposed Restructure (as discussed in our Letter) and therefore make your position with DANS In Home Care redundant. Regrettably, this means that your employment with DANS In Home Care will be terminated by way of redundancy, effective immediately.

In line with our Letter and our discussions with you, we have made several attempts to find you an alternative position within the organisation.

However, we confirm that you did not accept our offer to redeploy you into the role of Permanent Part Time - Aged Care Worker (Qualified).

Your employment will end today, 17th October 2025 and we confirm that we will provide you with all of your legal entitlements, including:

• payment for all hours worked up to and including today;

We note that we are paying you in lieu of notice so that you have additional time to find alternative employment.

Please return all of DANS In Home Care's property and any confidential information and intellectual property in your possession or control by 10am Monday 20th October 2025.

You are also reminded that your obligations under your employment contract and the Corporations Act 2001 (Cth) (including but not limited to confidentiality, intellectual property and restraints), continue to apply after the cessation of your employment.

Thank you for your service to DANS In Home Care and we wish you well in your future endeavours.

If you have any questions in relation to the above, please contact me.

[15] In accordance with s.389(1)(a) of the FW Act, the Respondent submitted that the Team Leader role was no longer required to be performed by anyone. The Respondent submitted that the duties associated with that role were absorbed, redistributed, or redesigned as part of a broader organisational restructure.

[16] In accordance with s.398(1)(b), the Respondent submitted that it met its consultation obligations under the relevant Award as evidenced by the following steps taken:

• It provided written notification of the proposed change;
• Consultation meetings were held to discuss the proposed redundancy and invite feedback; and
• Redeployment options were explored and discussed prior to termination by way of redundancy.

[17] The Respondent submitted that it took active steps to avoid terminating the Applicant's employment, by offering her a reasonable alternative position. However, the Respondent noted that the Applicant declined this redeployment opportunity.

[18] The Respondent maintained that the Applicant's dismissal was a case of genuine redundancy and that her application should be dismissed.

[19] The Applicant submitted that her dismissal was not a case of genuine redundancy, as the Respondent failed to comply with its mandatory consultation obligations.

[20] The Applicant submitted that she underwent an emergency surgery on 23 September 2025 and was on a period of leave until 7 October 2025. The Applicant submitted that she provided a medical certificate on her return to work, which restricted her from driving for a period of 6 weeks, and from lifting more than 5kg.

[21] The Applicant submitted that she received a text from Ms Jaqui Martel, Director, on 8 October 2025, directing that she work in a manner inconsistent with her medical restrictions.

[22] The Applicant submitted that on 9 October 2025, she received an email inviting her to a Teams meeting regarding 'redundancy'.

[23] As to the consultation process, the Applicant submitted that the Respondent failed to provide clear or meaningful information regarding the proposed changes to her role or any organisational restructure. The Applicant submitted that when she requested information to properly consider redeployment, the Respondent refused to provide job descriptions, position descriptions, training details or handover information.

[24] The Applicant submitted that the Respondent advised that redeployment would only be considered if the Applicant altered her availability, which the Applicant submitted "effectively exclud[ed] [her] from reasonable alternative employment".

[25] The Applicant submitted that the Respondent altered the proposed redeployment options on three occasions, required immediate commencement, and continued to refuse provision of job descriptions, training or handover:

"• 10 October - Permanent Part-Time Aged Care Care Worker

• 14 October - Aged Care Worker (Qualified)
• 17 October - Care Worker (Qualified)"

[26] The Applicant submitted that the Respondent's conduct deprived her of any genuine opportunity to consider redeployment.

[27] The Applicant submitted that she had also raised concerns regarding the genuineness of the redundancy after the Team Leader position was advertised internally.

[28] In response to the Applicant's submissions regarding a 'medical event' in September 2025, the Respondent submitted that to date, no medical certificate or supporting evidence has been provided by the Applicant. The Respondent submitted that it has had no formal notification of any medical restrictions, reduced capacity, or need for modified duties at any time prior to or during the redundancy process.

[29] The Respondent submitted that on 8 October 2025, when Ms Martel sent a text to the Applicant, the Respondent had no knowledge of any medical restrictions or reduced capacity of the Applicant. The Respondent submitted that the only reference to 'light duties' originated from the reply to Ms Martel and was not based on medical evidence or a formal notification from the Applicant.

[30] Further, the Respondent submitted that any medical-related communication and the redundancy process were entirely unrelated.

[31] As to the Applicant's submissions relating to the consultation process, the Respondent rejected the allegation that it failed to provide clear or meaningful information regarding the proposed changes to the Applicant's role or any organisational restructure. The Respondent submitted that meaningful information was provided to the Applicant in the letter of 10 October 2025, which clearly stated:

• "The role's responsibilities can no longer be sustained based on current operational and financial requirements."; and

• "DANS is now seriously considering proceeding with this proposed restructure, which would result in your permanent part-time Team Leader position being made redundant."

[32] The Respondent submitted that the Applicant was already aware of:

• The loss of a significant client in Orange where the last day of service was 9 July 2025; and
• The Respondent's decision to exit Complex Disability Health Services in Orange (12 September 2025).

[33] The Respondent submitted that these clients formed a substantial part of the Applicant's duties, and that this was reiterated to the Applicant during the consultation meeting on 13 October 2025.

[34] The Respondent denied refusing any request from the Applicant for job descriptions, position descriptions, training details etc. The Respondent submitted that it sought clarification by asking the Applicant "Have I missed something?", to which the Applicant did not respond.

"• The Applicant had previously performed the Care Worker role from 14 August 2024 to 16 March 2025.

• The Applicant continued to hold a casual contract for the same role from 27 June 2025.
• The Team Leader position was a hybrid role, incorporating the inherent duties of the Care Worker position, which were already familiar to the Applicant.
• Training, handover, and a position description were unnecessary, as the Applicant had already carried out the duties associated with the redeployment role.
• It is the Respondent's standard practice to provide a position description with any new contract, and the Applicant had previously received this documentation."

[36] As to any requirement for 'altered availability' of the Applicant, the Respondent submitted that a Permanent Part Time Aged Care Worker position was offered as a redeployment option, with a 50-hour-per-fortnight contract matching the hours of the Team Leader role. The Respondent submitted that the Applicant was informed that any increase in contracted hours would require a change to her availability, consistent with the organisation's established process for managing contract hours and availability. The Respondent submitted that at no point was the Applicant advised or led to believe that this requirement would exclude her from redeployment options.

[37] As to the requirement for 'immediate commencement' in the redeployment role, the Respondent submitted that this requirement was not unreasonable, rather, it was intended to ensure continuity of the Applicant's employment, consistent with the Respondent's obligations to explore reasonable redeployment options under s.389(2) of the FW Act.

[38] The Respondent submitted that the Award does not prescribe a minimum or mandatory timeframe for consultation regarding redundancy. The Respondent submitted that under s.47-48 of the FW Act, an employer must comply with the consultation terms of the applicable Award, which require:

• notifying the employee of the proposed change;
• discussing the change and its effects;
• considering matters raised by the employee; and
• exploring redeployment.

[39] The Respondent submitted that it has complied with these obligations.

[40] The Respondent further submitted that the Applicant requested additional time to consider redeployment on 15 October 2025, which the Respondent granted. The Respondent submitted that the Applicant did not seek any further extension.

[41] In response to the Applicant's concerns relating to the Team Leader position being advertised internally, the Respondent submitted that:

"• The role was advertised internally once, and the Applicant was successful in obtaining it.

• Employment Hero does not allow deletion of internal communications, and the Respondent is willing to provide access.
• • The role was advertised externally on SEEK, with the advertisement expiring on 12 May 2025.
• The role has not been advertised internally or externally since."

[42] The Respondent submitted that, in accordance with the evidence before the Commission, it has met its statutory and Award‑based consultation obligations and acted reasonably in progressing the redundancy process.

[43] The Applicant commenced employment as a casual employee on 14 august 2024. Section 384(2) of the FW Act states:-

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer."

[44] Further to additional submissions filed by both parties in relation to the hours worked by the Applicant, I am satisfied and find that the Applicant was a regular casual employee prior to her transferring to the Permanent Part-Time role of 'Care Worker - Team Leader'. As a result, I am satisfied that the Applicant meets the minimum employment period and can therefore bring this unfair dismissal application. I have taken this into account.

[45] However, s.119(3) of the FW Act makes it abundantly clear, that when undertaking the calculation for redundancy pay, the Applicant's service as a casual employee does not count towards this calculation. As a result, I am satisfied and find that the Applicant had less than 12 months' service for the calculation of any redundancy pay which was due and payable at the time of her termination. I have taken this into account.

[46] It is evident that the process followed by the Respondent in identifying the Applicant's position as being redundant would not necessarily fit within the boundary of being 'best practice'. The simple fact that the Applicant made requests for additional information should have resulted in that information being provided by the Respondent, rather than the Respondent refusing to either supply the information, or ignoring the request. The fact that the Applicant may have served in a position prior to her current role, or even under the hybrid scenario, does not mean that the position was not subject to modification as a result of her current role being made redundant due to the possible allocation of some of her tasks to these other positions. The failure by the Respondent to provide the requested information to the Applicant may have influenced her decision in relation to the acceptance or otherwise of these lower graded positions. I have taken this into account.

[47] However, it is evident that the Applicant's role was made redundant and that the Respondent has complied with the provisions of the Award in relation to that redundancy process. The fact that it is not best practice does not make the process invalid. I have taken this into account.

[48] Finally, I note that the Applicant declined the offer of redeployment, which was her right to make such a decision. I have taken this into account.

[49] For the reasons stated above, I am satisfied and find that the process followed by the Respondent does not invalidate the Applicant's redundancy, and that the Applicant was genuinely made redundant by the Respondent on 17 October 2025.

[50] The jurisdictional objection of the Respondent is upheld.

[51] The Applicant's unfair dismissal application is dismissed.

Printed by authority of the Commonwealth Government Printer