Worker uncovers evidence suggesting role transfer rather than genuine position elimination
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving an accounts receivable manager who challenged his employer's claim that his termination was a genuine redundancy.
The worker argued that his dismissal was actually retaliation for requesting a pay rise and filing workplace complaints with the Commission.
The worker presented evidence suggesting his role was not genuinely redundant, including the discovery of a job advertisement in another country that appeared to match his position exactly.
He also pointed to the timing of his dismissal, which occurred shortly after he had requested a salary increase and lodged general protections and workplace bullying applications.
The worker started employment in July 2022 as an accounts receivable manager with a company that provided administrative services to a private higher education institution. The institution delivered vocational education and English language courses across campuses in Melbourne, Geelong, Sydney and Adelaide, primarily serving international students.
In his role, the worker supervised a junior employee in Melbourne and managed two finance staff based in India. He reported directly to the chief financial officer and handled student account reconciliation, receivables collection, student inquiries, graduation planning, and customer relationship management issues. Throughout his two-year employment, he received no performance appraisals or pay adjustments despite requesting feedback.
The workplace relationship became strained when the worker requested a salary increase in May 2024. He argued he was underpaid according to his classification under the Education Services Award, claiming he should receive $40.80 per hour rather than the $37.96 he was paid. His email to the institution's chief executive officer received no response.
Around this time, the worker discovered an advertisement on an Indian job site for a senior accounts receivable manager position that matched his job description exactly, including additional duties he had recently outlined to his manager who was visiting the offshore office.
The worker's concerns led him to file a general protections application in June 2024, followed by a workplace bullying complaint. The FWC noted that having observed correspondence between the worker and his managers, "one can reasonably draw the conclusion that the relationship was strained between the two."
In June 2024, the employer announced impending staff cuts through an email from the chief of staff. The communication explained that government decisions to cut immigration and impose caps on international student intakes would affect 95 per cent of the business and require "deep cuts in spending, staff numbers and increasing efficiencies."
However, the worker disputed these claims by presenting evidence that student numbers had actually increased significantly. He showed that student intake for February-March 2024 was 1,146 students, up from 711 in July 2023 for Bachelor and Master degree programs. The worker argued that "the evidence of student intake numbers did not support the reasons for the proposed staff cuts."
The worker also pointed out that the government legislation cited as justification had not actually passed Parliament. The employer's redundancy timeline raised procedural concerns. The worker received a "Notice of Major Workplace Change" on 15 July 2024, but the letter was dated 15 July while asking him to provide comments by 11 July. The consultation meeting included additional employer representatives who attended without prior notice, despite the worker expecting to meet solely with one manager.
During the consultation meeting, the worker raised his underpayment claim and referenced his pending FWC applications. The Commission found that both managers "showed no interest to engage on the issue" when the worker raised these concerns as potential reasons for his selection.
Under the Fair Work Act, a dismissal is only considered genuine redundancy if the employer no longer requires the job due to operational changes and has complied with consultation requirements under the relevant modern award. The FWC found the employer failed to meet both requirements.
The employer claimed that anticipated government legislation affecting international student numbers necessitated the restructure. However, the FWC noted the relevant bill had not passed Parliament and was still dependent on legislative approval. The worker's evidence of strong enrolment numbers contradicted claims that redundancies were operationally necessary.
The FWC found the employer failed to provide adequate evidence that the accounts receivable manager position was no longer required. The decision noted: "The uncontested evidence is that [the worker] was required to hand over his duties on his last day to his junior in the finance department."
The consultation process was fundamentally flawed under the Education Services Award requirements. The award requires employers to discuss proposed changes with affected employees, including "the introduction of the changes" and "their likely effect on employees" and "measures to avoid or reduce the adverse effects of the changes on employees."
The FWC emphasised meaningful consultation must occur "at the formative stage of proposals – before the mind of the executive becomes unduly fixed." The decision found that "the extent of the consultation by [the employer] was no more than 'we have read your comments.' He says that he received no feedback to his questions."
Having established the dismissal was not genuine redundancy, the FWC assessed whether it was unfair under the Fair Work Act. The FWC found no valid reason existed. For a reason to be valid, it should be "sound, defensible or well-founded." The decision stated: "On the evidence, it is reasonable to conclude that while [the employer] dismissed [the worker] for the reason of redundancy, the reason was not defensible."
The timing raised questions about the employer's true motives. The worker was dismissed before scheduled meetings for his applications, which were subsequently discontinued. The FWC observed: "There was no credible reason for the coincidence of the two claims and [the worker's] dismissal."
As a large organisation with multiple related entities and appointed human resources professionals, higher standards were expected. The FWC found the employer "ought to have better managed the alleged 'proposed restructure' and complied with its obligations to notify affected staff, engage in meaningful consultation and be able to defend its reason for dismissal."
Notably, key decision-makers did not provide evidence to support the redundancy. The group chief executive officer who authorised the redundancy was not called to give evidence, nor was the worker's direct manager.
The FWC awarded the worker six weeks' compensation totalling $8,654.88 gross, significantly less than the maximum 26 weeks available. The reduced amount reflected the deteriorated employment relationship and the worker's two-year service period.
The FWC considered that given the strained relationship demonstrated through correspondence and Commission applications, "employment was unlikely to continue for more than six months." The worker secured alternative employment approximately 15 weeks after dismissal.
The decision concluded: "I am satisfied that the amount of compensation is appropriate to the circumstances of this case and the criteria for deciding compensation under section 392(2)." The compensation was ordered to be paid within seven days, with superannuation contributions also required.
The FWC's finding that "there was an absence of credible evidence from [the employer] to find that the dismissal was a genuine redundancy under section 389 of the Act" demonstrates that redundancy processes must be genuine, well-documented, and follow proper consultation requirements to avoid unfair dismissal liability.
