Employee argues job remained necessary while employer cites reduced hours and financial losses
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim involving a part-time worker who challenged his redundancy after being employed for nearly six years. The case centred on whether the dismissal constituted genuine redundancy under Australian employment law.
The worker argued his dismissal wasn't a genuine redundancy, pointing to several factors that he believed demonstrated his job remained necessary. He highlighted that his employer engaged a relief worker after his departure, advertised his position on the same day he was made redundant, and subsequently filled that advertised role.
His employer maintained the redundancy was genuine, arguing that reduced work requirements meant his full-time position was no longer economically viable. The case shows how employers must navigate the three-part legal test for genuine redundancy while managing workforce changes driven by client demands.
The worker had been employed as a trainer by BSI Learning Institute Pty Ltd, an education business contracted to deliver training to correctional centres in New South Wales (NSW). His role involved teaching foundational skills to inmates at the South Coast Correctional Centre. The worker's employment was covered by the Educational Services (Post-Secondary Education) Award 2020, with a contract providing 34 hours per week.
The employer's contract with Corrective Services NSW operated on a system where training needs were determined by each centre from "block to block," with each block representing a 10-week training cycle. The FWC noted: "Each centre advises the [employer] by week 6 of the current block what training they require to be delivered for the following block of 10 weeks." Initially, the centre assigned 40 training hours per week, shared between the worker and another trainer.
This arrangement continued until August 2023, when circumstances changed significantly. The FWC found: "In August 2023 there was a drop in the overall training hours requested by the Centre from 40 to 28 hours per week." Despite working only 24 hours, the worker continued receiving pay for 34 hours weekly, as the employer anticipated training requirements would eventually return to previous levels.
The situation remained unchanged for over a year until November 2024, when the employer started formal consultation procedures. On 15 November 2024, the employer sent the worker a comprehensive letter outlining the consultation process. The letter stated: "This consultation process is being initiated as part of a comprehensive review of the workplace structure and operational functions relative to the South Coast Correctional Centre. This process may lead to changes in the way we are operating and staffing requirements, including the potential for redundancies."
The letter explained the employer's intention to explore alternatives: "The purpose of this consultation is to engage in an open dialogue with you regarding the proposed changes, explain the reasons behind the review, and explore any potential alternatives to redundancy, including redeployment or changes to your role." A formal meeting occurred on 26 November 2024, where the worker was accompanied by his union delegate.
Two days later, the employer's chief financial officer sent an email containing a specific redeployment offer. The proposed position involved identical duties but as a fixed-term contract until June 2026, providing only 24 hours per week without travel time or expense payments, though with an increased hourly rate of $40 per hour.
The worker rejected the redeployment offer and challenged the redundancy's genuineness on multiple grounds. First, he pointed to the employer's engagement of a relief teacher from when he ended work until March 2025. Second, he highlighted that the employer advertised his position on 5 December 2024, the same day his role was declared redundant.
The worker's third significant argument emerged during a commission conference on 14 March 2025, when the employer revealed that the advertised position had been filled. The worker argued that if his job was no longer required, there was no need to hire someone into that position. He also challenged whether the situation constituted a genuine 'change in operational requirements,' arguing there was no evidence of the comprehensive review mentioned in the employer's November letter.
Additionally, the worker argued that 'financial and commercial challenges' didn't fall within the meaning of 'changes in operational requirements' under the Fair Work Act 2009. He suggested the redundancy wasn't genuine because the employer could have redistributed hours between the two trainers.
The employer maintained that the worker's 34-hour weekly position was genuinely no longer required due to legitimate operational changes. The employer's position was that the worker had been paid for 34 hours weekly from August 2023 to December 2024 despite only working 24 hours, and the anticipated return to 40 training hours hadn't occurred.
The FWC recorded the employer's argument that "it was not economically feasible for the [employer] to continue to pay the [worker] for 10 hours per week that he was not required to work."
The employer's chief financial officer provided evidence explaining why two trainers were necessary at the centre, noting that training sessions sometimes overlapped, requiring simultaneous instruction. During final negotiations on 5 December 2024, the worker sought a higher hourly rate of $55 per hour and additional weekly hours, both of which the employer rejected.
The employer's rationale was clear, as the FWC noted: "The [employer] stated that the reason for it not agreeing to a higher rate of pay was that it was operating at a loss in relation to the [worker's] employment and it was not commercially viable to do so." The employer maintained that operational requirements alone drove the decision.
The FWC applied the three-part test for genuine redundancy under section 389 of the Fair Work Act, examining whether the employer no longer required the job due to operational changes, whether proper consultation occurred, and whether reasonable redeployment was possible. The FWC stated: "The evidence is clear that the 34 hour per week role the [worker] held was no longer required in that the training hours required by the Centre had reduced in August 2023."
The FWC addressed the worker's concerns about the job advertisement and subsequent hiring: "I do not accept that the content of the job advertisement is relevant to whether the redundancy was genuine, in the face of the [employer's] evidence about why it advertises a particular way, and most importantly because the job that was filled was on fundamentally the same terms that were offered and rejected by the [worker]."
Regarding consultation, the FWC found: "I am satisfied that the [employer] met its obligations to consult. It gave written notice to the [worker] on 15 November 2024, held discussions with him and his representative, and agreed to a slightly higher hourly rate of pay following a request by the [worker]." On redeployment, the FWC concluded: "To the extent there was another position available, that being a fixed term contract for 24 hours per week, this was offered to the [worker] and rejected by him."
The FWC ultimately determined: "I am satisfied that the [worker's] employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act." As a result, the worker's unfair dismissal application was dismissed.
