s.394 - Unfair dismissal

Application for unfair dismissal remedy - jurisdictional objection - Applicant's dismissal was case of genuine redundancy - dismissal found to be genuine redundancy - application dismissed

• [1] This decision deals with the jurisdictional issue of genuine redundancy in an unfair dismissal application made under s 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] Mr Teck Foo Lim (the Applicant) lodged an unfair dismissal application in the Commission on 21 March 2025, pursuant to s.394 of the Fair Work Act 2009 (Cth). The Respondent, Circles Australia Pty Limited filed a Form F3 employer response on 14 March 2025, in which it raised a jurisdictional objection. The objection raised is that Applicant's case is one of genuine redundancy within the meaning of s.389 of the Act.

• [3] The matter was heard on 27 May 2025. The evidence give at the hearing was in respect of the jurisdictional issue, the merits and remedy. In accordance with s 396 of the Act, the Commission must first determine whether the Applicant's case is one of genuine redundancy. If the jurisdictional objection fails, then the Commission is required to consider and determine the merits and, if necessary, any remedy in relation to the unfair dismissal application.

• [4] At the hearing, the Applicant gave evidence on his own behalf. Ms April Han, Director - People & Culture Circles Life Asia Technology Pte Ltd (Circles Asia), gave evidence for the Respondent. The Respondent is a wholly owned subsidiary of Circles Asia. Ms Han evidently undertakes the people and culture function for the Respondent.

• [5] For the reasons set out below, I find that the Applicant's dismissal was a case of genuine redundancy. Accordingly, the Respondent's jurisdictional objection succeeds and it is not open to the Commission to determine the merits of the Applicant's matter or any remedy.

• [6] The Applicant was employed by the Respondent in the position of Victoria State Manager commencing on about 22 March 2021, pursuant to a written contract of employment dated 18 March 2021. As at 28 February 2025, the Applicant's base salary was in the sum of $126,600.01. During the employment, the Applicant received other remuneration such as bonuses, commission payments and shares vesting in accordance with an employee stock option scheme.

• [7] The Respondent was a mobile virtual network operator business which sold SIM only mobile phone plans (the Australian business).

• [8] In his capacity as Victoria State Manager the Applicant's duties involved developing and maintaining commercial relationships with dealers in Victoria and Tasmania who would then resell the Respondent's mobile phone plans. In order to grow the sale of the mobile plans, the Applicant would engage with current dealers and identify and build relationships with new dealers. The Applicant would perform work both "on the road" and in the office. The Applicant was not a staff member of part a call centre. The Applicant's contract of employment specified that he reported to the National Sales Manager in Australia. However, as at February 2025, the Applicant reported to the Respondent's Country Manager, Mr Dean Merrion. Until September 2024, one other employee, reported to the Applicant.

• [9] The Applicant had counterpart state managers in other states including Western Australia and New South Wales.

• [10] The Applicant's contract of employment included express terms as to notice. In respect of termination by the Respondent, clause 13.1 of the contract required two months' notice in writing or payment in lieu including part payment in lieu.

• [11] In late 2024, the Respondent and Circles Asia entered into negotiations with the Amaysim Australia Ltd (Amaysim) to sell the Australian business to Amaysim. Amaysim is part of the Optus Group. The negotiations for sale were conducted commercial-in-confidence.

• [12] On or very shortly before 20 January 2025, the Foreign Investment Review Board gave its approval for the sale of the Australian business to Amaysim. On 20 January 2025, the Respondent held a conference call with employees including the Applicant to inform employees of the sale of the Australian business. During the conference call, Mr Merrion and Ms Han informed employees that the Respondent had sold the Australian business to Amaysim, that the Respondent would be existing operations in Australia and that the employees would be made redundant. On 21 January 2025, Mr Awais Malik (Chief Growth Officer) sent an email to all staff, including employees of the Respondent and Circles Asia, confirming the Respondent's sale of the Australian business to Amaysim.

• [13] On 23 January 2025, the Respondent held a video conference meeting with its employees including the Applicant which was addressed by Mr Merrion and Ms Han. In this meeting, Mr Merrion and Ms Han informed employees that that Amaysim would not be offering employment to the Respondent's employees and consequently the employees, including the Applicant, would be made redundant effective on 28 February 2025.

• [14] On about 23 or 24 January 2025, the Respondent emailed the Applicant a proposed deed relating to the redundancy (the First Proposed Deed). The First Proposed Deed contained terms such as full releases but curiously provided for no additional employment benefits beyond those which were lawfully payable under the National Employment Standards and the contract of employment. The First Proposed Deed included recitals in the following terms:

A. The Employee is currently employed by Circles and has been since on or about 22 March 2021 (the "Employment").

B. Circles has entered into an agreement to sell its mobile virtual network operator ("MVNO") business in Australia ("the Transaction"), which will affect the role the Employee performs.

C. Circles has discussed the matter with the Employee, with a view to considering an alternative to termination (the "Consultation")

D. There being no alternative to Employee leaving the Employment of Circles, it will end (the "Redundancy")

E. Employee was informed of the decision to end the Employment on 23 January 2025 (the "Notice")

F. The date of termination of the Employment will be 28 February 2025 (the "Effective Date")

G. The Parties have agreed to settle, without admission of liability, all liabilities to each other arising from the Employment, the Consultation, the Redundancy and the Notice, and the Additional Benefits and all other aspects of any dealings or liabilities between them, without admission by either side.

H. The ending of the Employment in Australia is hereinafter referred to as "the Termination".

• [15] On 3 February 2025, the Applicant sent an email to Ms Han and Ms Joyce Chan of Circles Asia. In that email the Applicant raised a number of issues including that he had not received formal written notice of termination under clause 13.1 of his contract of employment, that he had not received any follow up consultation relating to the redundancy, that there was no EAP support, that daily 'Docusign' reminder emails to sign the First Proposed Deed were causing him stress and requesting that the Respondent cease sending him those reminders. In this email, the Applicant and sought additional benefits relating to the redundancy termination, being payment of two months' payment in lieu of notice, an additional one weeks' redundancy pay, a cash bonus in respect of unvested share options, provision for the Applicant to sell his vested shares to the Respondent, payout of his sick leave balance and an additional 1 months' salary.

• [16] At 3:00am on numerous dates after the Applicant's receipt of the First Proposed Deed, the Respondent sent him autogenerated 'Docusign' email notifications to his work email address, requesting him to sign the First Proposed Deed or the revised deed referred to in paragraph [18] below. Unfortunately, these autogenerated notifications persisted even after the Applicant requested the Respondent to cease sending him those notifications. For whatever reason, the Respondent, while expressing some understanding that the autogenerated notification were not ideal, was unable to turn off that default function.

• [17] On 7 February 2025, the Respondent emailed the Applicant a response to his email of 3 February 2025. The Respondent rejected the Applicant's proposal set out in his 6 February 2025 email but indicated that the First Proposed Deed would be amended to provide an additional benefit, being vesting of the Applicant's pro-rata employee stock options under the ESOP for the period between 1 July 2024 and 28 February 2025.

• [18] On 10 February 2025, the Respondent emailed the Applicant a copy of a revised deed (the Second Proposed Deed) which in addition to the pre-existing entitlements arising under the contract of employment and NES, specified the additional benefit of pro rata vesting of stock options for the period 1 July 2024 and 28 February 2025. The pro rata vesting of stock options was not an entitlement under law.

• [19] On 11 February 2025, the Applicant consulted his doctor who provided him a medical certificate for a period of three weeks. However, the Applicant continued to work until 18 February 2025 as he was seeking to assist the Respondent's dealers finalise their commission payments before the Respondent finally divested the Australian business. On 18 February 2025, the Applicant provided the medical certificate to the Respondent and commenced a period of paid personal leave which continued until his employment ceased on 28 February 2025.

• [20] On about 20 February 2025, Mr Merrion sent an email to state managers of the Respondent, including the Applicant, indicating that Amaysim was keen to see their CVs and that that the Respondent could facilitate the provision of employee CVs to Amaysim. On 25 February 2025, another employee emailed Ms Han and asked whether redundancy benefits would still be paid by the Respondent if an employee obtained employment with Amaysim. On 26 February 2025, Ms Han responded that the Respondent would pay redundancy whatever the outcome of an employment application with Amaysim. The Applicant and other employees of the Respondent were also copied into this email exchange. The Applicant did not respond to Mr Merrion's invitation regarding provision of CVs to Amaysim as the Applicant had already forwarded his CV to Amaysim on his own initiative.

• [21] On 28 February 2025, the Applicant's employment ceased. The Respondent paid the Applicant his accrued and untaken annual leave entitlement, seven weeks' pay in respect of redundancy and payment in lieu of the balance of his two months contractual notice period (the balance being equivalent to 15 working days' pay). The balance of the notice period was calculated by the Respondent on the basis that it had given part actual notice on 23 January 2025 when it informed employees that the employment would cease on 28 February 2025.

• [22] The Applicant did not sign the Second Proposed Deed and therefore did not receive vesting of pro rata shares.

• [23] Section 389(1) of the Act sets out the meaning of "genuine redundancy" and is in the following terms:

(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:

(a) the employer's enterprise; or

(b) the enterprise of an associated entity of the employer.

• [24] Under s 389(1)(a), it is necessary to determine whether an employer no longer required an employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Under s 389(1)(b), it is necessary to determine whether a modern award or enterprise agreement applied to the employment and, if so, whether the employer complied with any obligation in such instrument to consult about the redundancy. Even if the requirements of s 389(1) are met, the operation of s 389(2) is such that a dismissal due to redundancy will not be a genuine redundancy if would have been reasonable in all of the circumstances for the person to be redeployed within the employer's enterprise or an enterprise of an associated entity of the employer.

• [25] In this matter, I am satisfied that the Respondent no longer required the Applicant's job to be performed by anyone because of changes in the operational requirements of the Respondent. The Respondent sold the Australian business to Amaysim in about January 2025. The sale of business constituted or generated a change in the operational requirements of the Respondent because it no longer operated the Australian business. Because of that change, the Respondent no longer required the Applicant's job to be performed by anyone. Consequently, s 389(1)(a) is satisfied.

• [26] Therefore, it is necessary to consider the application of s 389(1)(b). The first matter to consider is whether a modern award or enterprise agreement applied to the Applicant's employment. Neither party contended that an enterprise agreement applied to the employment. This is no doubt because no enterprise agreement in operation covered the parties.

• [27] The Applicant contends that the Telecommunications Services Award 2020 (TS Award) applied to his employment. During the hearing, the Respondent contended that the TS Award did not apply.

• [28] Clause 4 (Coverage) of the TS Award is relevantly in the following terms:

4.1 This industry award covers employers throughout Australia who are engaged in the telecommunications services industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 15 - Minimum rates to the exclusion of any other modern award.

4.2 Definition of telecommunications services industry

For the purposes of clause 4 telecommunications services industry means any

(a) whose principal function is a telecommunications service carrier; or

(b) whose principal function is a carriage service provider or a content service

(c) whose principal function is the supply of telecommunications services

including value added telecommunications services; or

(d) whose principal function is incidental, ancillary or complementary to the

businesses referred to in clauses 4.2(a), 4.2(b) and 4.2(c); or

(e) which supplies labour to a business in the telecommunications services

industry on a labour hire basis in respect of any such labour hire employees

while engaged in the performance of work for a business in the

4.3 Telecommunications service carrier means the holder of a carrier licence.

• [29] In order for me to be satisfied that the TS Award applies, I must be satisfied of two matters. Firstly, that the Respondent was engaged in the "telecommunications services industry" as defined in clause 4.2. Secondly, that the Applicant was engaged in a classification listed in clause 15 of the TS Award.

• [30] I am satisfied that the Respondent is engaged in the telecommunications services industry. The Respondent's business was the supply of SIM based mobile phone plans. Therefore, the Respondent's "principal function [was] the supply of telecommunications services" within the meaning of clause 4.2(c) of the TS Award.

• [31] However, I am not satisfied that the Applicant was engaged in any of the classifications listed in clause 15 of the award. The classifications in clause 15 are in three streams: customer contact stream, clerical and administrative stream and technical stream. Schedule A (Classification Structure and Definitions) provides definitions of the various classifications within each stream. The Applicant's employment does not fall within any of the classifications in the technical stream which entail technical tasks in the nature of cabling, installation of equipment, planning of customer network infrastructure etc. Similarly, the Applicant's employment does not fall within any of the classifications in the clerical and administrative stream which entail clerical roles or tasks, which were not in the nature of the Applicant's position. In that regard, the role definition and indicative tasks of the Clerical and Administrative Employee Level 5, the highest classification in in the Clerical and Administrative Stream, makes no reference the principal role and task of the Applicant, which was a sales function, specifically to facilitate the sale of mobile phone plans through existing and new dealers. I am also not satisfied that the Applicant's employment fell within the customer contact stream. The classifications in the customer contact stream are referrable to roles in a call centre environment. The Applicant did not work in a call centre.

• [32] Consequently, I am not satisfied that that Applicant is engaged in a classification in the TS Award. Therefore, based on the material before me, I am not satisfied that the TS Award applied to the employment of the Applicant having regard to requirement in clause 4.2 of the TS Award that its coverage was dependent on an employee being engaged in a classification in the award.

• [33] As no modern award or enterprise agreement applied to the Applicant's employment, the Respondent had no consultation obligation which engaged s.389(1)(b).

• [34] However, if I am wrong on my conclusion regarding award coverage, I have considered whether or not the Respondent has consulted in a manner which complies with clause 28 (Consultation about major workplace change) of the TS Award. I note that the TS Award consultation clause is in identical terms to the consultation terms in other modern awards.

• [35] Firstly, the obligation to consult under clause 28.1 is enlivened by a definite decision to make major change that is likely to have significant effects on employees. The sale of the Australian business to Amaysim, resulting in all of the employees of the Australian business being made redundant, easily meets this definition of a major change. This definite decision was made at about 20 January 2025, being the time of the approval by the Foreign Investment Review Board referred to in paragraph [12] above.

• [36] Secondly, once enlivened, the consultation clause in the TS Award imposes four obligations on an employer, namely to:

(a) give notice of the changes to employees who may be affected and any representative (see clause 28.1(a));

(b) discuss as soon as practicable with affected employees and any representative of the affected employees the introduction of change, the likely effect on employees and measures to avoid or reduce the adverse effect of changes (see clause 28.1(b) & (c));

(c) provide for the purposes of the discussions, all relevant information about the changes including their nature, expected effect on employees and any other matters likely to affect employees (see clause 28.2); and

(d) promptly consider any matters raised by the employee or their representatives about the changes in the course of the discussions (clause 28.4).

• [37] In relation to clause 28.1(a), the Respondent gave notice of the change in production, programme and organisation to the Applicant and other employees at the teleconference meeting on 20 January 2025 and in Mr Awais' email of 21 January 2025. These communications informed the Applicant that the Respondent was divesting itself of the Australian business and, in the teleconference on 23 January 2025, the Applicant was informed that his position was being made redundant.

• [38] In relation to clause 28.1(b) and (c), the Respondent undertook discussions with employees including the Applicant on the likely effect on employees and measures to avoid or reduce the adverse effect of changes. The discussions commenced as soon as practicable, given that they could not occur until after the Foreign Investment Review Board approved the sale of the Australian business, as without such approval no sale could go ahead. These discussions occurred at the video conference meeting on 23 January 2025 when the Respondent informed employees including the Applicant that Amaysim would not be employing them, that their employment would end by way of redundancy on 28 February 2025 and they would receive entitlements in respect of redundancy termination. In the Applicant's individual case, the discussions continued by way of email. The Applicant's email of 3 February 2025 raised concerns about the redundancy and termination process and made representations about why he should receive additional benefits on termination. The Respondent's email of 7 February 2025 responded to the Applicant's email of 3 February 2025 and whilst rejecting the Applicant's claim for additional benefits, did convey that the Respondent would allow pro rata employee share options to vest on his last day of employment subject to the execution of a deed. The email of 7 February 2025 also drew the Applicant's attention to his eligibility to access EAP during the employment and for three months after the employment ended. Furthermore, the Respondent in the email exchange of 20, 25 and 26 February referred to in paragraph [20] above (to which the Applicant was copied in), indicated its preparedness to forward employee CVs to Amaysim and responded promptly to an employee query by confirming that the Respondent would pay redundancy benefits regardless of the outcome of an employment application with Amaysim.

• [39] In relation clause 28.2, I consider that the Respondent provided all relevant information in writing about the change as follows:
  • Mr Awais' email of 21 January 2025 to employees including the Applicant notifying them of the sale of the Australian business;
  • The matters set out in the recitals to the First Proposed Deed sent on 23 or 24 January 2025 which recounted in writing matters previously conveyed to the Applicant at the meetings on 20 January 2025 and 23 January 2025 being that the Respondent was selling the Australian business to Amaysim and this sale would affect the Applicant's role, there was no alternative to a redundancy dismissal and that employment would terminate on 28 February 2025;
  • Ms Han's email of 7 February 2025 which provided a response to various of the issues and requests made by the Applicant in his emails of 3 February 2025; and
  • Mr Merrion's email of 20 February 2025 regarding the preparedness of the Respondent to send employee CVs to Amaysim and Ms Han's email of 26 February 2025 which was responsive to a query from an employee as to whether employment with Amaysim would impact redundancy payments made by the Respondent.

• [40] I do observe that provision of written information in the recitals to a proposed deed is not an ideal way to convey information in writing for the purposes of consultation. Usually, such information is conveyed by way of stand-alone letter. However, the issue I am required to consider is whether, the information was conveyed in writing, not whether it was conveyed in the most optimum manner.

• [41] The Respondent also discharged any obligation to give prompt consideration to matters raised by the Applicant. The Applicant raised matters in his email to the Respondent of 3 February 2025. Ms Han's emails to the Applicant of 5 and 7 February 2025 responded to those matters and reflected prompt consideration by the Respondent of matters raised by the Applicant. I do note that in the email of 5 February 2025, Ms Han acknowledged that the daily autogenerated Docusign emails regarding the Deed were "not ideal" and expressed "appreciation" for the Applicant's "patience and understanding". While Ms Han's sentiments were expressions of understanding and goodwill to the Applicant, it was obviously undesirable autogenerated email reminders continued, despite the Applicant's request that they cease. However, this inability by the Respondent to discontinue the autogenerated email reminder does not constitute a failure by the Respondent to give prompt consideration to matters raised by the Applicant about changes in the Respondent's business.

• [42] Therefore, I conclude that even if the Applicant was covered by the TS Award, the Respondent has complied with an obligation to consult under clause 28 (Consultation about major change).

• [43] In the circumstances set out above, I am satisfied that the Applicant's dismissal was a case of genuine redundancy within the meaning of s 389(1) of the Act.

• [44] In relation to the "reasonable redeployment" exception in s 389(2) of the Act, I note that the Applicant did not contend that it would have been reasonable for the Applicant to be redeployed within the Respondent's enterprise or and associate entity. This was no doubt because the Respondent had sold the Australian business to Amaysim. In these circumstances, I cannot conclude that it would have been reasonable in all of the circumstances for the Applicant to be redeployed within the Respondent's enterprise or the enterprise of an associated entity.

• [45] Having regard to the above matters, I am satisfied that the Applicant's dismissal by the Respondent effective 28 February 2025 was a case of genuine redundancy within the meaning of s 389 of the Act. Consequently, Applicant's unfair dismissal application under s 394 of the Act fails for want of jurisdiction and it is not open to the Commission to determine the matter of merits or remedy. Consequently, the application must be dismissed.

• [46] An order giving effect to this decision will be separately issued.

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