s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether genuine redundancy - application dismissed.

• [1] Ms Penny Chronopoulos (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 in respect of her employment with Aris Zinc Group Pty Ltd (Respondent).

• [2] The Applicant commenced with the Respondent on 21 November 2023 and her employment ceased on 9 June 2025 by reason of redundancy. The Applicant claims that her dismissal was not a case of genuine redundancy and that her dismissal was unfair.

• [3] The Commission must determine, by virtue of s.396 of the Act, the question of whether the dismissal was a genuine redundancy before considering the merits of the application.

• [4] At the hearing, the Applicant was self-represented and the Respondent was represented by Ms Michelle Carn.

• [5] For the reasons set out below, I find that the Applicant's dismissal was a case of genuine redundancy, and as a result she is not a person protected from unfair dismissal.

• [6] The parties raised matters in their evidence that were not relevant to the issue for determination. Accordingly, the evidence considered below is limited to what is necessary to determine whether the Applicant's dismissal was a case of genuine redundancy.

• [7] The evidence given by Mr Achuthan, Founder and Managing Director of the Respondent, was that the Respondent owns and operates, as a small business, various legal entities that provide recruitment and payroll services, professional and managed services, and NDIS services. His evidence included that he had closed a number of businesses recently, in addition to all the Respondent's 'in person' offices other than its office in Canberra. At the time of the hearing, the Respondent said it employed around 8 employees, in addition to contractors it engaged as required.

• [8] The Applicant was employed in a 'dual role' 3 days per week, with one day as a People and Culture Officer, and two days as a Senior Consultant.

• [9] On 9 June 2025 the Respondent sent the Applicant a letter in the following terms:

I am writing to formally notify you of the hard decision to conclude your engagement with ARIS ZINC GROUP (AZG), effective 30th June 2025, due to organisational retrenchment.

Your People and Culture role has contributed to AZG's internal development, contractor support, and policy compliance, particularly in aligning with Fair Work standards. I wish to sincerely thank you for your dedication, professionalism, and the professional influence you've brought across our people.

Unfortunately, as a small business, I am now faced with difficult decisions in response to current market conditions and broader operational constraints.

Given your seniority and valued tenure with AZG, I have made the considered decision to waive your notice period. You are not required to work through the notice and may instead take this time to be with your family and explore your next opportunity. I have today asked Lizzie to meet with you and answer any questions. We will not be announcing your departure to the team until 30th June, and we ask that this remains in the strictest confidence. Your full entitlements will be paid in accordance with your contract, Fair Work compliance and our policies.

Should you wish, I will be more than happy to support you in identifying a suitable contract role. Additionally, I would be pleased to act as a referee on your behalf.

Please accept my deepest thanks once again for your contribution to AZG. I wish you continued success and fulfilment in all your future endeavours.

• [10] The Applicant was given three weeks' pay in lieu of notice.

• [11] Mr Achuthan gave evidence that after the Applicant was provided with the termination letter, the Applicant was asked whether she wanted the Respondent to "look for other contracts" for her. While the Applicant denied that this occurred, it seems on the face of the termination letter that an offer was made to assist her finding another role.

• [12] Mr Achuthan also gave evidence that the Applicant's roles had not been replaced or readvertised as alleged by the Applicant. He said that three full time roles had been advertised, noting that the Applicant was not willing to work full time, and that those roles had since been withdrawn and not filled. He also noted that some casual positions had been advertised which related to work with government clients requiring a particular skill set and security clearances for which the Applicant was not qualified.

• [13] Mr Achuthan said he had assumed most of the responsibilities of the HR role, and that he had closed about 40% of his operations due to a market downturn and changes to service panels and other government arrangements. He also said the NDIS business had been closed following a recommendation made by the Applicant a few months prior.

• [14] Finally, Mr Achuthan gave evidence that between April and June 2025 he had given the Applicant an opportunity to propose alternatives in terms of her ongoing work with the Respondent, as her consulting work related to the NDIS business which had closed. However, the Applicant did not provide any suggestions that would cover her salary.

• [15] The Applicant gave evidence that she did not consider her redundancy to be genuine because she had not been consulted prior to her termination, nor provided with any opportunities for redeployment to another role with the Respondent. She said that following her termination, several new roles had been advertised which included duties similar to those she performed.

• [16] The Applicant noted that while she had been involved in the recruitment process for some new roles, these were different to those advertised in June 2025.

• [17] Under s.385(d) of the Act a person is not unfairly dismissed if the dismissal was a genuine redundancy. The term 'genuine redundancy' is defined in s.389 of the Act:

(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.

• [18] Therefore, there are three relevant matters for consideration in determining whether the Applicant's dismissal was a case of genuine redundancy, namely:

1. Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise?

1. Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

1. Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [19] The Explanatory Memorandum to the Fair Work Bill 2008 provides that a redundancy may be genuine where, for example, the employer only needs three people to do a particular task or duty instead of five, or where the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.[1]

• [20] Further, the process for selecting an individual employee for redundancy is not a relevant question as to whether the redundancy is a genuine redundancy.[2]

Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise?

• [21] As noted above, in considering the question of whether an employer 'no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise', it is well established that the test can be met when job functions are retained but are redistributed.

• [22] An employee's job may be genuinely made redundant when the employee's duties, or aspects of them, are still being performed by other employees.[3] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[4]

• [23] The reference to 'changes in the operational requirements of the employer's enterprise' in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.[5] The operational circumstances of a business which may result in a redundancy are in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee's job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer's enterprise.[6]

• [24] In Ulan Coal Mines Limited v Henry Jon Howarth and others[7], the Full Bench said:

"[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 [2010] FWA 674 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.'"

• [25] In Adams v Blamey Community Group[8], the Full Bench, in relation to s.389(1)(a), said:

"it is necessary to state at the outset that consideration of whether the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer's decision to make the person's job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee's job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, "Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements." What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee's job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary." (citations omitted)

• [26] The Applicant did not specifically contend that both of her roles continued to be required to be performed, or that they had been advertised after she was made redundant.

• [27] The Respondent maintained that the Applicant's roles had not been replaced or advertised, and that Mr Achuthan had taken on some of the HR duties the Applicant had previously performed.

• [28] Having considered the evidence and submissions, I am satisfied and find that the Applicant's roles no longer exist and have not been replaced. I also accept the evidence of Mr Achuthan that he has assumed some of the HR duties that had been performed by the Applicant.

Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

• [29] The Applicant did not assert or provide evidence that would support a finding that an enterprise agreement or a modern award applied to her employment. Her employment contract indicates that no award applied.

• [30] As a result, I am satisfied that that there were no consultation obligations with which the Respondent had to comply.

Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [31] As set out earlier, s.389(2) provides that a person's dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise.

• [32] For the purposes of section 389(2) of the Act, the Commission must consider whether 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. There must be an appropriate evidentiary basis for such a finding.[9] The word 'redeployed' in section 389(2) of the Act should be given its ordinary and natural meaning, which is to 'transfer to another job, task or function'.[10]

• [33] The focus of the Applicant's evidence was that three other roles were advertised shortly after she was made redundant. There was disagreement between the parties as to whether the Applicant had been offered an alternative role. In relation to the advertised roles, I note that one was for an accountant. The Applicant's resume did not disclose that she was qualified to perform this role. The other roles were full time positions that required a security clearance, and I accept the Respondent's evidence that those roles were subsequently withdrawn and not filled. I also accept that the 'People Consultant' role which was advertised was a full time position which the Applicant had previously indicated she did not wish to undertake.

• [34] The Applicant also pointed to Ms Carn, who represented the Respondent at the hearing of this application, as having been 'rehired'. However, I accept that she is a contractor engaged on an as-needed basis.

• [35] I am therefore not satisfied that there is an evidentiary basis for finding that it would have been reasonable for the Applicant to be redeployed.

• [36] For the above reasons, I am satisfied that the Applicant's employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act.

• [37] As a result, the Applicant is not an employee who is protected from unfair dismissal and her application under s.394 of the Act must be dismissed. An order dismissing the application will be issued with this decision.

[1] See Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1548.

[3] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404-5.

[4] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].

[5] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496 at p. 373.

[6] Kieselbach v Amity Group Pty Ltd PR973864 at [34].

[7] [2010] FWAFB 3488.

[8] [2016] FWCFB 7202.

[9] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36].

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