The "advertised" role was never advertised, never filled, and never even created
A dismissed underwriter waited nearly three months to challenge her redundancy after ex-colleagues sent her an internal job description she believed proved her role still existed.
The Fair Work Commission, in a decision handed down on 5 May 2026, dismissed the late unfair dismissal application of Mary Cooper against Envest Direct Agencies Pty Ltd, finding the circumstances were not exceptional enough to extend time.
Cooper started with the company on 6 March 2023 as a Sales and Service Consultant before moving into an Underwriter role on 6 November 2023. On 24 November 2025, she was called into an 8:45am in-office meeting and told her position was being proposed for redundancy. In that meeting, she pushed back, telling her employer the work still existed and that other staff did not have the knowledge or skills to do it.
A consultation letter and proposed new structure landed in her inbox that same afternoon, with a deadline of 26 November 2025 to provide feedback. She submitted her response on time, and the employer reviewed it on 27 November 2025. The next day, on 28 November 2025, while working from home, she joined a 1:30pm Teams meeting with Kerry Lowe and Wendy Leis Thom and was told her position had been made redundant. Her dismissal took effect on 1 December 2025.
The 21-day clock to file an unfair dismissal claim ticked over without an application. Cooper eventually lodged hers on 20 March 2026, 88 days late.
What changed her mind? In the second or third week of March 2026, former colleagues sent her an internal position description for a role titled "High Value Referrals and Underwriter Specialist." To Cooper, this looked like proof her job had never really disappeared. She also pointed to an internal staff communication noting the company had "continued to build capability in Agent Support, increase DUAs, and reduce referral volumes," which she said showed her work had simply been handed to others.
Notably, Cooper conceded at the hearing that she had suspected from the time of the proposal meeting that the redundancy was not genuine, a concession the Commission found significant in assessing her delay.
Envest's Group HR Manager, Chelsea Bradford, told a different story. The business had been working through an operating model and structural review, and falling underwriting volumes meant there was no longer enough work to support a full-time underwriting role. Agent Support staff had been given delegated authority so they could give customers real-time quotes instead of bouncing referrals to underwriters. As for the "High Value Referrals and Underwriter Specialist" role Cooper had latched onto, Bradford said it was shared with internal staff during consultation as a possible redeployment opportunity, never advertised externally, and ultimately never created because the business decided it was not required. Bradford did acknowledge that some of the duties in the proposed role had once been performed by Cooper.
Cooper also queried why she had not been moved into a "High Value and Growth Consultant" role still visible on the company website at the time of her dismissal. Bradford explained that role had been advertised in October 2025 and filled in November 2025, and was a customer sales role with no underwriting authority. The Commission noted Cooper was aware of that role and that it had been filled before her dismissal, and had even raised in her consultation feedback that she could have been moved into it.
Deputy President Beaumont accepted both witnesses were honest. But the Commission found Cooper's reasoning for the delay did not stack up. The Commission distinguished Cooper's situation from earlier cases such as Smith v Penrite Oil Company and Perret v Ayers Real Estate, where applicants had discovered external advertisements for vacant roles that closely resembled their former positions shortly after dismissal and acted immediately. Here, there was an approximate three-and-a-half-month period between Cooper's dismissal and the identification of the internal document, the document was never externally advertised, and the role was never filled. The decision also noted a key principle that often trips up employees and managers alike: "the test for a redundancy of a position is not whether the functions or duties themselves continue but whether the job itself survives." A role can be genuinely redundant even when its duties are spread across remaining staff.
Of the six factors weighed by the Commission under s 394(3) of the Fair Work Act 2009, only one fell in Cooper's favour: her written consultation feedback challenging the basis for the redundancy was treated as action to dispute her dismissal. The reason for the delay weighed against her, while the remaining factors, including whether she became aware of the dismissal after it took effect, prejudice to the employer, the merits of the application, and fairness as between her and others in a similar position, were either neutral or did not support a finding of exceptional circumstances. The application was dismissed.
The case is a useful reminder that draft position descriptions shared during consultation can be misread, screenshotted and circulated long after the process ends. Clear labelling of consultation documents, careful messaging about why proposed roles do or do not proceed, and proactive conversations about what "redundancy" legally means can save a lot of grief down the track.
