Job postings were for lower assistant positions, argues employer
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a trainee driller who argued his redundancy was not genuine after discovering his former employer had advertised for drilling positions shortly after his termination.
The case arose when the worker was made redundant due to alleged operational requirements and business downturn, but later found job advertisements for driller assistants and evidence of continued hiring across the company.
The worker argued his dismissal was unfair because the company had other available positions he could have undertaken and had continued to engage people in roles suitable for his skills.
He maintained that he was not genuinely redundant and could have been redeployed to other positions within the organisation or its associated entities, particularly given his competency as a trainee driller.
The employer contested the worker's claim, arguing the dismissal was a genuine redundancy due to a significant business downturn that required reduced labour requirements and operational changes.
Business downturn forces operational restructuring
The employment relationship involved a trainee driller working for a company that provides core samples from hard rock using diamond-impregnated drilling equipment.
The general manager explained that work was precarious as it was contract-based and could be dependent on the results of early samples, making the business vulnerable to fluctuations in demand and project outcomes.
Despite the "trainee" designation, the worker's role was not entry-level but signified competency to drill without overseeing a drilling rig.
The company's progression structure moved from probationary offsider to offsider (assistant driller), then trainee driller, and finally to full driller status, placing the worker in a mid-level position within the operational hierarchy.
By April 2025, the business downturn had led to a significant reduction in operational requirements, with four drilling rigs ceasing operations.
This operational change necessitated a corresponding reduction in headcount across various positions, creating the circumstances that the employer argued justified the worker's redundancy as part of broader organisational restructuring.
Consultation process faces communication challenges
On 17 April 2025, the company sent the worker a letter stating that changes were being considered for field-based workers in response to recent reductions in work scope, and that his trainee driller position could be made redundant.
The letter requested feedback and noted the potential for employment termination with three weeks' notice and seven weeks' severance pay, while stating the company would investigate possible redeployment opportunities.
The consultation process encountered difficulties when the company attempted to engage with the worker about the proposed changes.
On 24 April 2025, both the general manager and HR manager tried to contact the worker to discuss the redundancy matters, but could not reach him.
A follow-up letter was sent that day stating attempts had been made to contact him about potential redundancies and that a decision would be made early the following week.
Further contact attempts continued with text messages and phone calls through to 28 April 2025, but the worker remained unresponsive to these communications.
The worker later explained he was tired from performing hard manual labour in another job, though the FWC found this was not a good reason for failing to respond to the company's consultation efforts during this critical period.
Redeployment assessment reveals limited options
The general manager conducted an assessment of suitable roles for the worker across the company group and concluded there were none available.
On 28 April 2025, he had discussions with the general manager of the parent company about potential redeployment opportunities across the broader group, but nothing suitable was identified given the operational constraints and reduced work requirements.
The company's assessment considered both internal positions within the immediate enterprise and opportunities within associated entities, as required under redundancy legislation.
However, the business downturn that had necessitated the closure of four drilling rigs had created a labour surplus rather than a shortage, limiting redeployment possibilities across the operational network.
On 30 April 2025, the HR manager sent the termination letter confirming the worker's redundancy, stating his position would end immediately with three weeks' pay in lieu of notice and seven weeks' redundancy pay.
The letter confirmed that all vacancies across the company and associated entities had been reviewed, and no suitable redeployment opportunities existed.
Worker challenges redundancy with subsequent evidence
The worker discovered what he believed was contradictory evidence when he found a job advertisement for driller assistants dated 28 May 2025 for work in regional New South Wales.
He also produced a handwritten list of approximately thirty people he claimed had been employed by the company since January 2025, suggesting continued hiring activities that he argued contradicted the genuine nature of his redundancy.
The worker maintained that the company had other available positions he could have undertaken and that drilling roles were "very much alike," making him suitable for various positions within the operational structure.
He suggested this evidence demonstrated he was not genuinely redundant and that alternative deployment options had been available but not properly considered.
However, the employer explained that the advertised driller assistant positions were different and lower-level roles compared to the trainee driller position the worker had held.
The general manager clarified that assistant drillers, also known as offsiders, had a helping role that was distinct from the competency level required for trainee drillers within the company's progression structure.
FWC examines genuine redundancy criteria
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 to be performed by anyone due to operational changes, whether consultation obligations were met, and whether reasonable redeployment options existed.
The Commission found: "I accept the evidence of [the general manager] that there had been a downturn in work resulting in a reduced labour requirement, and that [the worker's] job was no longer needed."
The FWC determined that operational requirements had genuinely changed due to business downturn and the company's reassessment of labour needs following the closure of four drilling rigs.
Regarding the subsequent job advertisements, the Commission preferred the employer's evidence about role differentiation, stating: "I find that these were for lower level roles... This was not an advertisement for [the worker's] job, nor does it cast doubt on the company's explanation of its reasons for his dismissal."
The FWC accepted that advertising for assistant driller positions was commercially sensible for securing pre-qualified candidates for potential future work.
Consultation requirements satisfied despite communication issues
The Commission examined whether consultation obligations under the Mining Industry Award 2020 had been met, particularly given the communication difficulties during the process.
The Award required employers to consult about major workplace changes by providing notice, discussing changes and their effects, and offering information in writing about expected impacts.
The FWC found the company had complied with consultation requirements through its correspondence dated 17 and 24 April 2025, noting: "a discussion can occur by correspondence. And although ordinarily such correspondence would require both parties to be involved in it, I find in this case that the company made reasonable efforts to contact [the worker] but that he did not engage with it."
The Commission determined: "I find that [the worker] did not make reasonable efforts to engage with the company about the changes from 17 April to 29 April 2025, and that in these circumstances, the employer's correspondence sufficed to satisfy the requirements" of the Award.
The worker's eventual attempt to contact HR on 29 April was found insufficient given his earlier non-responsiveness.
Redeployment assessment deemed reasonable
The FWC accepted the employer's evidence that no suitable redeployment roles existed within the enterprise or associated entities.
The Commission found: "There is no evidence to the contrary" regarding the absence of suitable positions and rejected the worker's suggestions that the company had ulterior motives for ending his employment.
The Commission also dismissed the worker's claims about being unfairly removed from a project site in November 2024 and subsequent delays in medical clearance, finding these did not contribute to or cause his redundancy.
The FWC stated: "The evidence does not support any such conclusion" that earlier events might have prevented the redundancy situation.
The Commission concluded: "Each of the requirements of s 389 is met. The dismissal was a case of genuine redundancy and was therefore not unfair."
The FWC found that even if consultation requirements had been deficient, the legitimate operational reasons for the dismissal would have outweighed any procedural shortcomings in determining overall fairness.
