1. A similar analysis would apply to an employer who preferred dismissal over retraining. If, in a given case, there is a position to which an otherwise redundant employee might be redeployed; but for which he or she is unqualified for want of appropriate training, the possibility that he or she might undertake that training (and, thereby, obtain that qualification) is a circumstance that is apt to inform whether the alternative of dismissal would qualify as "a case of genuine redundancy". The fact that there might be some barrier that makes redeployment more difficult or more involved than it otherwise could be - whether that barrier takes the form of a need for retraining or, as here, the pre‑existing occupation of roles by contractors - is not to the point. Whether redeployment "would have been reasonable in all [of] the circumstances" requires analysis of what an employer could have done apart from dismissing the employee.

1. That being so, the immediate unavailability of a position to which a redundant employee could conveniently have been redeployed does not necessarily inoculate an employer against a charge that a dismissal was "not a case of genuine redundancy". Naturally, it is a circumstance that, in any given case, might well favour a conclusion that redeployment would not have been reasonable. Whether that is so, however, will depend upon "all [of] the circumstances".

1. It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC's assessment of what "would have been reasonable in all [of] the circumstances".

• [24] The Applicant also submitted that it could not be a case of genuine redundancy because the Respondent was ignorant of the reason ExxonMobil terminated the assignment. The Applicant submitted that a labour hire employer who could claim a redundancy when a client exercises a right to terminate an assignment, would be a "backdoor way to achieve what the Commission decided against in Kool v Adecco Industrial Pty Ltd T/A Adecco'.[14] Kool v Adecco and similar cases have found that it is no defence to a claim of unfair dismissal by a labour hire employer to simply, without more, rely on complying with a direction of its client to terminate the employment of an employee on assignment. In Kool v Adecco, Deputy President Asbury (as she then was) said:

[49] However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and their consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the direction of another entity in effecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal. (underling added)

[72] If I accept Ms Coyne's witness statement as being a true and correct version of events, it is apparent that Ms Coyne simply acquiesced in the removal of Ms Kool from the Nestle site in circumstances where she had no independent view that there was any issue with Ms Kool's capacity or conduct. There is no evidence of any independent attempt on the part of Ms Coyne or any Adecco manager, to verify whether there was a valid reason for the removal of Ms Kool from the Nestle site, in circumstances where Ms Coyne's statement makes it clear that Ms Coyne knew that the reason for Ms Kool being removed from the site was allegations about her conduct. I do not accept that Adecco has established that there was a lack of alternative placements for Ms Kool or that she unreasonably refused an alternative placement so that it could be said that this constituted a valid reason for dismissal.

[73] Accordingly I am satisfied and find that there was no valid reason for Ms Kool's dismissal related to her capacity or conduct.

• [25] For a dismissal to be a genuine redundancy under s.389 of the Fair Work Act 2009 (Cth) (the Act), the dismissal has to be because the 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 the employer must have complied with any obligations in a modern award or enterprise agreement to consult about the redundancy. It will not be a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity.

• [26] In relation to redeployment, the alternative position 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.[15]

• [27] I reject the submission that a 12-month fixed term contract was entered into on 28 March 2023. Having regard to all the evidence, I accept Mr Chua's evidence that he advised Ms Koak that the role was a casual position. His evidence on that point was clear, consistent with the Respondent's practice and operations, and Ms Koak conceded that it was possible he had done so. It is also consistent with the subsequent actions of both parties, including the specific terms of the written contract subsequently provided and that the Applicant at no time prior to the termination, raised a concern as to why the contract and payslips were on a basis other than what she had agreed to. Even if a 12-month contract was entered into on 28 March 2023, the subsequent actions of the Respondent in providing a casual contract and paying on that basis would likely either constitute a repudiatory breach that the Applicant affirmed by continuing to perform the contract with no question, or that a new contract was entered into upon the signing of the written on-hire casual contract. I find that the contract between the parties was for a casual position for a maximum term of 12 months for the specific purpose of the assignment with ExxonMobil.

• [28] I am satisfied that the Respondent no longer required Ms Koak's position to be performed by anyone because she had been engaged to undertake the particular assignment with ExxonMobil, and its operational requirements changed when the client terminated the assignment and AirSwift was not required to provide labour as a result. Whilst initially pursued, the Applicant acknowledged during the hearing that in the circumstances there was no obligation to consult under the award that applied.

• [29] In many cases involving labour hire, a casual employee's employment is not terminated when an assignment ends and as found in Kool v Adecco, a labour hire employer cannot simply rely on the exercise of a client's contractual right to terminate the assignment to it of a particular employee, to justify dismissing that employee. There must be a valid reason for the dismissal. However, in this case, information technology was a new and small part of the Respondent's business, Ms Koak was employed specifically for the role at ExxonMobil and there were no other suitable alternative roles. That specific role ended when the assignment was terminated. I am satisfied that AirSwift has established that there was a lack of alternative placements for Ms Koak. In this sense, the circumstances involved in the present case are not analogous with the circumstances in Kool v Adecco.

• [30] Ms Koak's circumstances are more analogous to those considered in Pettifer v MODEC Management Services Pty Ltd,[16] where the Full Bench held on appeal that:

"MODEC was therefore contractually obligated to remove Mr Pettifer from the BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to perform. No longer capable of performing the inherent functions of this role, MODEC sought to find alternative employment for Mr Pettifer. Only after exhausting these inquiries did MODEC rely on this reason to terminate Mr Pettifer's employment. In these circumstances the Full Bench is satisfied that MODEC had a valid reason relating to Mr Pettifer's capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable employment for him."

• [31] As to redeployment, whilst Mr Chua's assessment of other opportunities suitable for the applicant was quick, taking less than one hour, in all the circumstances I am satisfied that this was sufficient time. As the Respondent is relatively new to the information technology area, it does not have the breadth and depth of roles existing in other parts of the business. At that point there was only a small number of available positions and whilst Ms Koak was rated highly by Mr Chua in relation to her specific skills and experience, his assessment was that she had less than 50% of the required skills for the few available roles. Given this, I am satisfied that the need for retraining was such that it was not reasonable to redeploy the Applicant into any of the available roles and that there were no roles available that could utilise the Applicant's skill set.

• [32] The termination of the Applicant's employment was a case of genuine redundancy. It is therefore not an unfair dismissal. The application is dismissed. An order to that effect will be issued.

G. Dircks of Just Relations, with permission on behalf of the Applicant.

N. Visedo of Citation Group, with permission on behalf of the Respondent.

[2] Witness Statement of Ms Koak, Exhibit SK3; Hearing Book ("HB") p.50-55.

[4] Witness Statement of Mr Chua at [9-11]; HB p.191.

[5] Supplementary Witness Statement of Ms Koak at [3], Transcript PN57.

[6] Supplementary Witness Statement of Ms Koak at [4].

[7] Witness Statement of Ms Coen at [12], Exhibit ACN-1; HB p.198-223.

[10] Witness Statement of Ms Koak, Exhibit SK1; HB p.30-48.

[11] Witness Statement of Ms Coen at [26].

[13] [2024] FCAFC 45 at [63]- [66].

[14] Applicant's Further Submissions in Reply dated 3 April 2024; Kool v Adecco Industrial Pty Ltd T/A Adecco [2016] FWC 925 ("Kool v Adecco"); adopted in Full Bench decisions e.g. Spinifex Australia Pty Ltd T/A Spinifex Recruiting the Patrice Tait [2018] FWCFB 6267.

[15] Ulan Coal Mines Limited v Honeysett & Ors [2010] FWAFB 7578.

[16] [2016] FWCFB 5243 at [37].

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