Employer successfully defends termination before FWC despite apprentice's challenge
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from an electrical apprentice whose employment was terminated on grounds of redundancy by a small agricultural services provider.
The worker challenged his redundancy on two main grounds. First, he argued that his dismissal was not genuine under the Fair Work Act 2009. Second, he contested the employer's claim of being a small business, suggesting it was part of a larger network of associated companies.
The case centred on whether proper procedures were followed and if redeployment opportunities were adequately considered before termination.
The worker was employed as an electrical apprentice between April 2023 and November 2024. He initially joined as a mechanical technician before entering a 4-year apprenticeship agreement in August 2023.
His duties included providing mechanical service and installation work for egg processing equipment across Victoria and interstate.
The employer, with only four direct employees at termination time, attributed the dismissal to an avian influenza outbreak in Victoria around May 2024. This outbreak significantly disrupted their operations in the agricultural sector.
The general manager of the employer testified: "Almost all scheduled work was put on hold or cancelled, with the exception of some work interstate and an installation in New Zealand. Significant effort was made to retain [the employer's] workforce; staff took leave when possible, [the employer] reached out to customers internationally in the hope of finding work."
The worker's Army Reserve commitments provided the employer with breathing room during this period. The general manager noted in his evidence that the worker's absence "provide[d] the business with an opportunity to try and ride out the impacts [Avian Influenza] was having on the business."
On 6 November 2024, the employer began the redundancy process by sending a "Redundancy Consultation Notification" letter stating that due to economic downturn, they had reviewed requirements for the mechanical technician role.
Two days later, on 8 November 2024, the worker attended a meeting with the general manager and an external human resources consultant from a firm called People Positive.
During this meeting, he was informed his position was redundant and offered the opportunity to complete first-year apprenticeship modules during his paid redundancy period.
When questioned by the Commissioner during the hearing, the worker recounted: "She [the human resources consultant] told me that the role was being made redundant, not myself, the role. And due to that redundancy, my employment would be terminated. She emphasised that it was not due to my Reserve commitments. If anything, that they had actually helped to prolong my employment."
Following the meeting, his termination letter stated: "Following the consultation meeting... and as a result of the impact of Avian Influenza, the economic downturn and resulting restructure, the position of Mechanical Technician is no longer needed. Regrettably this means your employment will terminate."
The FWC examined whether the redundancy met Section 389 requirements of the Fair Work Act: the job is no longer required, proper consultation has occurred, and redeployment opportunities were considered.
The Commissioner determined the employer no longer required the worker's services due to financial circumstances caused by the avian flu outbreak. The evidence showed consultation obligations were satisfied through notification and discussion opportunity.
The Commissioner clarified in the decision: "The obligation of the modern award to consult with employees about impending redundancy is not an obligation to reach agreement about the situation. Instead, the obligation becomes an opportunity for the affected person to put forward why their job should not be considered to be redundant or to discuss other measures."
This determination highlighted that while consultation is mandatory under the Fair Work Act, employers aren't obligated to reach agreement with employees – they must provide opportunity for response.
A central question was whether the employer was part of a larger group of associated entities, which would affect both redeployment obligations and small business status under the Fair Work Act.
The worker claimed the employer operated within a network of poultry industry businesses, including farms and service companies sharing management and resources under a common organisation.
The general manager refuted this during the hearing: "We provide contracted services to a number of businesses... Our relationships with the entities that [the worker] talks about, we provide contracted service with those... As a small business, we can't afford employing those types of people to provide them all services, so we outsource those."
The Commissioner found the general manager's evidence on company structure credible, noting the worker's assertions didn't meet the standards established in the Corporations Act 2001 for proving associated entities.
For a genuine redundancy under the Fair Work Act, employers must consider whether redeployment is reasonably possible within their enterprise or associated entities.
The Commissioner referenced previous Full Bench guidance from the FWC: "For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee."
When directly questioned during the hearing about potential redeployment positions, the worker acknowledged: "No, I have not" when asked if he could identify specific roles he could have been redeployed into.
Based on the evidence presented, the Commissioner concluded: "I am unable to find from these matters that it would have been reasonable in all the circumstances for [the worker] to be redeployed within [the employer] or elsewhere. It follows from the above analysis that I accept [the worker's] dismissal was a genuine redundancy."
The FWC ultimately dismissed the worker's application, confirming that a genuine redundancy had occurred that complied with Fair Work Act requirements.
