Employer cites surplus staffing due to a manager's return from maternity leave
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving an event specialist who argued his dismissal was not a genuine redundancy after being terminated 16 weeks before his fixed-term contract expired.
The case arose when the worker was dismissed early due to his manager's return from maternity leave, despite having a 12-month contract with a specific end date that had not yet been reached.
The worker argued his dismissal was unfair because it occurred due to the employer's internal delays rather than genuine operational changes, and he was not given proper procedural fairness or redeployment opportunities.
He maintained that he had a reasonable expectation that his employment would continue until the contract expiry date and that his early termination was caused by the employer's finance approval delays.
The employer contested the worker's claim, arguing the dismissal was a genuine redundancy because the returning manager's presence created surplus staffing in the team structure.
The organisation maintained that with the manager's return from maternity leave, there were more employees than required positions, making the worker's role redundant within their operational structure.
The employment relationship involved a not-for-profit organisation with approximately 686 employees across 19 countries, with 15 employees in its Sydney office.
The organisation employed an event manager who informed them in early 2024 that she was pregnant and would take parental leave, creating a temporary staffing need in the events team.
The organisation decided to cover the manager's absence by having a Hong Kong-based event specialist act up as event manager and appointing a new event specialist for a fixed 12-month period working from the Sydney office.
This new role would essentially perform the Hong Kong specialist's substantive duties while she acted in the higher position during the manager's absence.
In May 2024, the worker saw the event specialist role advertised as a 12-month fixed-term contract.
During a telephone conversation with the manager about the role, he was told the position existed because of her pregnancy and that she was due to return from maternity leave in March 2025, though the advertised role was clearly stated as 12 months duration.
The worker started her employment on 22 July 2024 in the event specialist role with a contract clearly stating commencement and end dates of 22 July 2024 to 22 July 2025.
The contract included a clause providing both parties with the right to terminate employment by giving six weeks' written notice, but established the fixed-term nature of the arrangement.
Working from the Sydney office, the worker was responsible for coordinating and organising events for the organisation, and the employer accepted that he performed well in the role.
The contract terms and job advertisement both clearly specified that the role was for a 12-month period, creating reasonable expectations about employment duration.
On approximately 4 March 2025, the manager returned to work from parental leave, resuming her role as event manager.
Consequently, the Hong Kong-based specialist ceased acting as event manager and returned to her substantive event specialist role, creating what the employer viewed as surplus staffing in the team structure.
On 20 March 2025, the worker received an electronic meeting invitation entitled "Invite to consultation meeting" scheduled for the following day.
At the 21 March meeting, he was informed by senior management and a human resources business partner that his employment would be terminated due to redundancy, with the explanation that it was due to the manager returning from parental leave.
The FWC found there was no discussion at this meeting about other available positions either in Australia or elsewhere, and no exploration of redeployment options.
The worker was not invited to bring a support person to this meeting, and the Commission accepted evidence that the employer had already made the decision to dismiss him prior to this consultation.
The worker's evidence, which was preferred over hearsay evidence from the employer, established that he had the expectation that his employment would continue until the fixed-term expiry on 22 July 2025.
He had not been told by anyone that his employment would not continue after March 2025, despite knowing the manager would return around that time, and this expectation was consistent with the clear contract terms.
A critical finding emerged regarding the timing mismatch between the manager's return and the worker's contract end date. The employer's head of HR operations gave evidence that there had been a delay caused by the finance department in approving the event specialist role that was filled by the worker, with the organisation having "a very arduous sign-off process for approving any jobs."
The Commission found this delay created an inevitable excess job in the team structure, given that the organisation understood the manager was returning in March 2025, some three to four months before the worker's contract end date. Without this finance approval delay, it appeared the worker would have ceased employment at or around the same time the manager returned from leave.
The FWC determined: "It was this delay that created an inevitable excess job in the team in circumstances where [the employer] understood that [the manager] was returning to work in March 2025, which was some three to four months before the end date specified in [the worker's] Contract. Without the delay, an excess job in the team was unlikely."
The FWC examined whether the dismissal met the genuine redundancy requirements under employment legislation, specifically whether the employer no longer required the worker's job to be performed due to changes in operational requirements.
The Commission found that while there was one more event specialist than required after the manager's return, this did not constitute changes in operational requirements.
The FWC determined: "I am not satisfied that reason can be characterised as being 'because of changes in the operational requirements of [the employer]'."
The FWC noted the team structure remained unchanged before, during and after the manager's leave, with the same number of required team members, locations and management structure throughout.
Importantly, the Commission found: "there was no change in the operational requirements of [the employer]. The required number of team members, the location where such team members were to work and the management structure of the team were unchanged before [the manager's] period of leave, during her period of leave and after [the worker's] dismissal."
While the Commission found no Australian-based vacant positions at the time of dismissal, evidence emerged during cross-examination that there was a vacant event specialist role in Dubai.
The worker suggested this role could be performed remotely from Sydney, based on his experience coordinating New Zealand events remotely, but the employer provided compelling evidence that the Dubai role required physical presence for face-to-face events.
When asked directly, the worker confirmed he would not have been prepared to relocate to Dubai for the role.
The FWC concluded: "In circumstances where [the worker] was not prepared to relocate to Dubai, I am not satisfied that it would have been reasonable in all the circumstances to redeploy him to that role."
However, the Commission found the employer failed to make genuine attempts at redeployment, noting: "There was no discussion at the meeting held on 21 March 2025 about other available positions either in Australia or elsewhere, and/or any other options to redeploy [the worker]."
The employer's approach of sending general all-staff emails about vacancies was deemed insufficient as a genuine redeployment attempt.
The FWC concluded the dismissal was not a genuine redundancy and proceeded to examine whether it was harsh, unjust or unreasonable.
The Commission found several factors weighing in favour of unfairness, including that the worker lost his job much earlier than expected through no fault of his own, with the fault resting with the employer's finance approval delays.
The Commission identified serious procedural fairness failures, noting: "[The employer] should have notified [the worker] that it was considering dismissing him. That notification should have occurred before the decision was made to dismiss him."
The FWC found the denial of procedural fairness deprived the worker of opportunities to explore redeployment alternatives.
The Commission concluded: "Having considered and weighed each of the relevant matters... I am satisfied that [the worker's] dismissal was harsh, unjust or unreasonable."
The FWC ordered compensation of $9,443.08 plus superannuation, calculated based on the 16-week period between dismissal and the original contract end date, after deducting payments in lieu of notice and subsequent earnings.
