Court rules John Holland's redundancy was genuine, not retaliation
A construction worker said his redundancy was payback for injury claims and complaints. A federal court disagreed, thanks largely to a manager's text history.
The Federal Circuit and Family Court of Australia handed down its decision in Elliot v John Holland Pty Ltd on 23 April 2026, dismissing operator Nicholas Elliott's claim that his termination from the West Gate Tunnel Project breached the general protections provisions of the Fair Work Act 2009.
Elliott was dismissed on 20 February 2024. His employment with John Holland began on 1 March 2021 through a transfer of business from his previous employer. His case stacked up an unusually long list of alleged prohibited reasons: up to six employment complaints, up to eight employment inquiries, up to seventeen periods of paid personal leave, a Comcare claim, workplace adjustments for a back injury sustained in September 2022, and a proposed second Comcare claim. The second Comcare claim was rejected in December 2023, and the decision to reject it was affirmed on 8 February 2024. Three business days later, his manager raised the proposed redundancy.
Elliott also alleged a mental disability stemming from medication and depression, although the court was not satisfied this had been established on the evidence. He further claimed a safety officer had told him, "we need to get you right so we can get rid of you," though that officer did not give evidence and the court made no finding against the decision-maker on that point.
The court accepted Elliott had a physical disability, a Comcare claim, work adjustments, and had made multiple complaints, inquiries and personal leave requests. As Judge Johns put it, "it is understandable that he genuinely considers Prohibited Reasons to be the reason for the Dismissal." But understandable suspicion was not the legal test.
What rescued John Holland was, in large part, paperwork and phone records belonging to one man: superintendent Mitchell Lunt.
In August 2023, as the West Gate Tunnel Project entered demobilisation, Lunt populated a spreadsheet scoring his team against selection criteria. Elliott landed fifth from the bottom. By November 2023, six of the eight lowest-ranked workers had been made redundant. Elliott was meant to be in that group, but consultation was delayed by his shifting roster, his absences, and the company's policy of not making people redundant in the lead-up to Christmas. Consultation finally happened on 13 February 2024, with termination a week later.
The court found the decision to make Elliott redundant was actually made in November 2023, well before the events he pointed to as triggers.
The employer's case did not run smoothly. Industrial relations advisor Charlotte Lawrence claimed in her affidavit that seven other workers were made redundant alongside Elliott. Under cross-examination she conceded he was the only person let go in February 2024. The respondent's own counsel told the court "Ms Lawrence was not a credible witness, and we don't cavil with that." Lunt's affidavit also required correction in the witness box.
What held up was Lunt's contemporaneous record. Across his many leave notifications, Lunt's replies were variations of "no worries mate." The court found those messages, alongside the August spreadsheet, painted a picture of a manager who was "legitimately concerned for [Mr Elliott's] wellbeing" rather than building a paper trail to push him out.
A few things stand out from the judgment. Selection criteria created in the ordinary course of business carry serious weight in court, particularly when scored before any dispute arises. Timing redundancy conversations close to a workers' compensation decision invites litigation, even where the underlying decision is sound. Witness preparation matters: inaccurate affidavits damaged the employer's credibility before the substantive case was even tested. And day-to-day manager communications, including casual text messages, can become some of the most persuasive evidence a business has.
