Worker said that following her termination, several new roles had been advertised, which included duties similar to those she performed
A people and culture officer challenged her dismissal, arguing the redundancy was not genuine because she was not consulted before termination, and several new roles were advertised after she left that included similar duties.
The employer maintained the worker's dual role no longer existed due to business closures and market downturn, with the managing director assuming some HR duties and other advertised positions being different roles requiring different qualifications.
Dual role and termination letter
The worker commenced with the employer on 21 November 2023, and her employment ceased on 9 June 2025 by reason of redundancy.
The employer owned and operated, as a small business, various legal entities that provide recruitment and payroll services, professional and managed services, and National Disability Insurance Scheme (NDIS) services.
The managing director's evidence included that he had closed a number of businesses recently, in addition to all the employer's 'in person' offices other than its office in Canberra. At the time of the hearing, the employer said it employed around eight employees, in addition to contractors it engaged as required.
The worker was employed in a 'dual role' three days per week, with one day as a people and culture officer, and two days as a senior consultant.
On 9 June 2025, the employer sent the worker a letter stating that, as a small business, the employer was faced with difficult decisions in response to current market conditions and broader operational constraints.
With only five direct employees and approximately 130 contractors, the capacity to sustain a dedicated people and culture officer was no longer viable.
The letter noted that a sister entity had received over $350,000 in investment over the past 18 months, yet had yielded no return, and prevailing market challenges continue to hinder its progress.
The letter stated the managing director had made the considered decision to waive the worker's notice period.
She was not required to work through the notice and could instead take this time to be with her family and explore her next opportunity.
The letter offered to support the worker in identifying a suitable contract role and to act as a referee on her behalf. The worker was given three weeks' pay in lieu of notice.
Dispute over redeployment offers
The managing director gave evidence that after the worker was provided with the termination letter, the worker was asked whether she wanted the employer to "look for other contracts" for her.
While the worker denied that this occurred, it seems on the face of the termination letter that an offer was made to assist her in finding another role. The managing director also gave evidence that the worker's roles had not been replaced or readvertised as alleged by the worker.
He said that three full-time roles had been advertised, noting that the worker was not willing to work full-time, and that those roles had since been withdrawn and not filled.
He also stated that some casual positions had been advertised, which related to work with government clients requiring a particular skill set and security clearances for which the worker was not qualified.
The managing director said he had assumed most of the responsibilities of the HR role, and that he had closed about 40% of his operations due to a market downturn and changes to service panels and other government arrangements.
He also said the NDIS business had been closed following a recommendation made by the worker a few months prior.
Finally, the managing director gave evidence that between April and June 2025, he had given the worker an opportunity to propose alternatives in terms of her ongoing work with the employer, as her consulting work related to the NDIS business, which had closed.
However, the worker did not provide any suggestions that would cover her salary.
Worker's evidence on consultation and roles
The worker gave evidence that she did not consider her redundancy to be genuine because she had not been consulted prior to her termination, nor provided with any opportunities for redeployment to another role with the employer.
She said that following her termination, several new roles had been advertised, which included duties similar to those she performed.
The worker noted that while she had been involved in the recruitment process for some new roles, these were different from those advertised in June 2025.
Genuine redundancy requirements
The FWC explained that the term 'genuine redundancy' is defined in the Act. A person's dismissal was a case of genuine redundancy if the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise, and the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer.
There are three relevant matters for consideration in determining whether the worker's dismissal was a case of genuine redundancy:
Did the employer no longer require the employee's job to be done by anyone because of changes in the operational requirements of the employer's enterprise? Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement? Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?
Job no longer required finding
The FWC further said that it is well established that the test can be met when job functions are retained but are redistributed. An employee's job may be genuinely made redundant when the employee's duties, or aspects of them, are still being performed by other employees.
The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.
The reference to 'changes in the operational requirements of the employer's enterprise' includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.
The worker did not specifically contend that both of her roles continued to be required to be performed, or that they had been advertised after she was made redundant.
The employer maintained that the worker's roles had not been replaced or advertised, and that the managing director had taken on some of the HR duties the worker had previously performed.
Having considered the evidence and submissions, the Commissioner was satisfied and found that the worker's roles no longer exist and have not been replaced.
The Commissioner also accepted the evidence of the managing director that he has assumed some of the HR duties that had been performed by the worker.
No consultation obligations
The worker did not assert or provide evidence that would support a finding that an enterprise agreement or a modern award applied to her employment. Her employment contract indicates that no award applied. As a result, the Commissioner was satisfied that there were no consultation obligations with which the employer had to comply.
Redeployment not reasonable
For the purposes of the Act, the Commission must consider whether there was a job or a position or other work within the employer's enterprise to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.
There must be an appropriate evidentiary basis for such a finding. The word 'redeployed' should be given its ordinary and natural meaning, which is to 'transfer to another job, task or function'.
The focus of the worker's evidence was that three other roles were advertised shortly after she was made redundant. There was disagreement between the parties as to whether the worker had been offered an alternative role.
In relation to the advertised roles, the Commissioner noted that one was for an accountant. The worker's resume did not disclose that she was qualified to perform this role.
The other roles were full time positions that required a security clearance, and the Commissioner accepted the employer's evidence that those roles were subsequently withdrawn and not filled.
The Commissioner also accepted that the 'people consultant' role which was advertised was a full time position which the worker had previously indicated she did not wish to undertake.
The worker also pointed to the representative who represented the employer at the hearing as having been 'rehired'. However, the Commissioner accepted that she is a contractor engaged on an as-needed basis.
The Commissioner was therefore not satisfied that there is an evidentiary basis for finding that it would have been reasonable for the worker to be redeployed.
For the above reasons, the Commissioner was satisfied that the worker's employment came to an end for reason of a genuine redundancy within the meaning of the Act. As a result, the worker is not an employee who is protected from unfair dismissal and her application must be dismissed.
