Worker claims core duties redistributed to colleagues rather than eliminated in restructuring decision
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application where a worker challenged her termination, arguing it was not a genuine redundancy. The case involved an operations manager who had been employed since July 2023 before being made redundant in February 2025.
The worker challenged her dismissal, arguing that her core duties remained necessary to the business and continued to be performed by existing employees or contractors after her termination.
She submitted video evidence and photographs to support her claims, while also raising concerns about potential retaliation connected to complaints she had made about her director. The worker further argued that parts of her workload were redistributed to other employees rather than being eliminated, suggesting her role was still required.
The worker had been employed as operations manager for a shopping centre when she received notice on 7 February 2024 that her role would be made redundant as part of a restructure. The employer, a property management company, advised that they intended to make her role redundant due to changes in their operational requirements.
Despite making a proposal for an alternative restructure that would preserve her position, the employer rejected this suggestion and confirmed the redundancy decision at a meeting on 12 February 2024.
The worker's challenge was based on her belief that her core duties remained necessary to the business and continued to be performed by existing employees or contractors after her dismissal.
In her submissions to the FWC, she argued that "core duties remained necessary to the business after her dismissal and continued to be performed by existing employees or contractors," and that "parts of [her] workload were redistributed to other employees rather than being eliminated."
The FWC had to determine whether the dismissal met the definition of genuine redundancy under section 389 of the Fair Work Act 2009. This section requires that the employer no longer needs the person's job to be performed by anyone due to operational changes, and that consultation obligations have been met where applicable.
The Commission noted that no modern award or enterprise agreement applied to the worker's employment, which meant specific consultation requirements were not relevant to this case.
The worker also raised serious concerns about retaliation, suggesting the redundancy was connected to complaints she had made about her director in October 2024. She further claimed that the justification for the redundancy was either non-existent or unsubstantiated, and that the rationale changed between financial savings and restructuring.
A significant procedural issue arose when the worker attempted to submit a covert audio recording of her initial redundancy meeting. The employer objected strongly, arguing it was illegally obtained under Western Australian surveillance laws and should not be admitted as evidence.
The Commission had to decide whether such potentially unlawful evidence should be admitted under established legal principles.
After consideration, the FWC excluded the recording. The Commissioner explained that "given the limited probative value of the evidence, and given that the [worker] could in any case cross examine one of her interlocutors from that meeting, the desirability of discouraging covert recordings was such that the evidence should not be admitted."
The decision reinforced that previous FWC decisions "have found covert recording of meetings and conversations in the workplace to be serious misconduct."
The worker also submitted video footage and photographs showing employer representatives at the shopping centre after her dismissal, arguing this proved her duties were still being performed.
The footage showed two employees at various times entering what had been her office. However, during cross-examination, she was unable to definitively identify how these individuals were performing her specific work beyond claims about them entering her former workspace.
The employer provided contextual evidence through emails with the shopping centre owners that had not been challenged by the worker. These communications revealed that discussions about reducing on-site presence had started in October 2024, with the owners expressing their desire to improve profitability.
A subsequent email confirmed the owners' preferred staffing model, proposing that a representative would visit the centre "once a week" rather than maintaining permanent on-site management.
The FWC applied established case law principles in determining whether the worker's job still existed. Drawing on previous decisions, the employer successfully argued that the continuation of some duties previously attached to a job does not mean the job itself remains necessary.
The legal test focuses on whether the specific job previously performed by the worker still exists rather than whether individual duties survive in some form.
The FWC found that while the employer maintained some presence at the shopping centre, this presence did not correspond with the job previously performed by the worker.
The evidence showed that one employee, a facilities manager, was "simply continuing the work he has done for some years as part of his role, which sometimes requires a visit [in the area]." His role had not changed, and he had visited the centre as required for years before the worker's redundancy.
Regarding another employee, an assistant property manager in the asset management division, the FWC accepted evidence that he or similarly qualified colleagues visited the centre approximately once per week on a rotating roster.
However, the FWC was satisfied that "there is no permanent presence – being a full-time employee – engaged at the centre to perform all of the duties that made up the [worker's] job."
The FWC also addressed the worker's concerns about allegedly inconsistent reasons given for the redundancy and the lack of financial data supporting the decision. However, it noted that "the views of the tenants are not relevant to the question of whether the job is redundant. They merely suggest that some people think the decision was a bad one."
The FWC emphasised that its role was not to assess whether a redundancy was good business practice, but rather "to assess as to whether the job is actually redundant."
The FWC concluded that the dismissal constituted genuine redundancy after finding that all requirements had been met.
The Commissioner stated: "I am satisfied based on the evidence before me that: (a) The [employer] no longer requires the [worker's] job to be done by anyone as a result of changed operational requirements; and (b) There was no award or enterprise agreement covering the [worker's] employment and as such no consultation requirements to be met; and (c) It would not have been reasonable for the [worker] to be redeployed."
The FWC added: "Given this, I find that the [worker's] dismissal was a case of genuine redundancy. The FWC has no jurisdiction to deal with the [worker's] unfair dismissal claim." An order dismissing the application was issued as a result.
