s.394 - Unfair dismissal

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

[1] Ms Sabrina Kohli (Applicant) has applied under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy following the termination of her employment with STLP Consulting Pty Ltd (Respondent) on 1 September 2025 by reason of redundancy. The Applicant contends that her dismissal was not a case of genuine redundancy and that her dismissal was unfair.

[2] 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.

[3] At the hearing, the Applicant was represented by Ms C McIvor of Adero Law and the Respondent was represented by Ms H Schoenherr of Irwell Law.

[4] 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.

[5] The Applicant commenced employment with the Respondent on a full time basis on 21 August 2021 and transitioned to the role of Development Manager in March 2023.

[6] On 22 August 2025, the Applicant was informed verbally and in writing that her role was at risk of redundancy. The letter she received by email was in the following terms:

I refer to our informal meeting today a 1030am, Friday 22nd August 2025.

As discussed, we are presently considering a restructure of the area in which you work because of the change in focus to enhance service delivery and product change control for the organisation.

In the circumstances, we confirm we are considering making your role as Development Manager redundant.

As such, we would like to meet with you on Monday, 25th August 2025 at 10:30am, to discuss the potential redundancy and any suggestions you may have to avoid this, or any other matters that you would like to raise with us in respect of this proposal.

Before we make a final decision in this regard, we will consider any suggestions or matters raised by you. We will also consider whether you can reasonably be redeployed into any other roles within the Company.

Should you have any queries or concerns throughout this process, please contact me.

[7] On 25 August 2025, a meeting took place between the Applicant and Mr McKay, the Respondent's Chief Technology Officer. Mr McKay told the Applicant that there could be a part time service delivery manager role available and he would look into it and get back to her about it. He was subsequently informed by a member of the HR team that the role was not actually available because it was occupied by another employee.

[8] Mr McKay emailed the Applicant on 29 August 2025 to provide further information she had requested about the restructure and advised her that the part time role was not in fact available. I am satisfied on the evidence that the role was not available because it was already occupied by another employee and had been so for some time prior.

[9] On 1 September 2025 the Applicant attended a final consultation meeting, after which she was provided a letter confirming her role was redundant and her employment was ending that day.

[10] The Applicant's evidence focussed on her workload, the disputes she had with Mr McKay and Ms Greaves (the CEO), and what she described as changes to her duties while she was on medical leave. In terms of the redundancy, she contended that she was not given the opportunity to ask questions or provide feedback during the meeting on 22 August 2025. However, I am satisfied that she was afforded that opportunity during the meeting on 25 August 2025.

[11] In terms of some of the other matters raised by the Applicant, she pointed to a private message exchange between the CEO and other employee on or around 15 August 2025 in which the CEO said "I am making some others redundant as well and restructuring with different ones but its illegal for me to raise those details before consultation, and I can't consult while people are on protected (medical) leave ...". I accept the Respondent's evidence that there were three employees on medical leave at that time and the reference was not made specifically about the Applicant. I do not accept the Applicant's contention that this message was evidence that the Respondent had made a definite decision to terminate her employment without having first consulted with her, given the message relates to both restructuring (which may not lead to termination of employment) and redundancy.

[12] The Respondent's evidence, which I accept, is that over the course of 2024 and 2025, a significant number of senior employees were made redundant. This included the entirety of the Executive Leadership team in 2024, and most of its senior leadership roles in 2025, including the Applicant's role. Further redundancies have occurred since the Applicant's employment ended.

[13] 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.

[14] 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?

• [15] 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]

• [16] 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?

[17] 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.

• [18] 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]

• [19] 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]

• [20] 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.'"

• [21] 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)

[22] Having considered the evidence and submissions, I am satisfied and find that the Applicant's role no longer exists and has not been replaced. The evidence in that regard was clear and was confirmed by Ms Denton, a current employee of the Respondent, whose evidence was called by the Applicant.

[23] I am further satisfied that the Applicant's redundancy was a result of changes in the operational requirements of the business. As the CEO explained, there are now no "middle management" positions within the business (which is the level the Applicant occupied). The CEO also explained the changing nature of the business which involved its move from a "start up" to a more "mature" business, with requirements to 'scale up' and focus on achieving profitability. This led to the Executive Leadership positions being removed in 2024 and then the senior leadership positions being removed in 2025. The operational changes were implemented through both natural attrition and redundancies.

[24] It also seems uncontroversial that other people have assumed some of the duties previously performed by the Applicant. However, as the case law makes clear, the question is not whether the duties have survived in some form, but whether the role the Applicant held remains after the restructure.

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

[25] I am satisfied that the Respondent consulted with the Applicant as required by the relevant award. As set out earlier, she was provided with notice in writing that her role was at risk of redundancy, she attended meetings to discuss the proposed redundancy, and was given the opportunity to ask questions and propose alternatives.

[26] While the Applicant criticised the consultation process in part because it only took just over one week, I do not consider that this was an inappropriately short period, in circumstances where there were no redeployment opportunities and where the operational requirements meant most of the leadership positions within the business were no longer required.

[27] As a result, I am satisfied that that the consultation obligations were satisfied.

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

[28] 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.

• [29] 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]

[30] I accept the Respondent's evidence that there were in fact no other roles to which the Applicant could have been redeployed. The part time role that had been discussed with the Applicant was occupied by another employee. There was no evidence of any other suitable role the Applicant could have undertaken. It matters not that the HR team may have expressed a view that it would not be appropriate to redeploy the Applicant to a fixed term role, given the evidence demonstrates that no such role was available in any event.

[31] 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.

[32] 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.

[33] 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.

H Schoenherr of Irwell Law for STLP Consulting Pty Ltd.

[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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