This extract from a recent Fair Work Commission decision in an unfair dismissal case applies the legal principles at play in such cases to the facts of the case. It is very common for people to believe that the law cannot regard a job as having genuinely become redundant if the functions of the particular job are redistributed to other employees. That is incorrect, as the passage makes clear.
“[11] Mr Tilakaratne said that most of the core functions of his job of finance director continued to exist and must be performed by someone, which meant that his position was not redundant. I reject this. Positions are frequently redundant even though some or all of their functions may still be required. What is relevant for the purposes of s 389 of the Act is whether the employer no longer wanted the employee’s job to be performed by anyone, not whether the duties of that job are still needed. It is a routine matter for the work of a redundant job to be reassigned to other workers. Mr Tilakaratne said that some elements of his old job had not been retained and that this somehow called into question the genuineness of the redundancy, but I fail to see how. Mr Tilakaratne said that his proposal would have given the company greater savings. I do not accept this but in any event the reasons for the restructure and the redundancy were not confined to reducing costs.
[12] Mr Tilakaratne said that the documents produced by Laurus showed that it had decided to implement the restructure before consulting with him and that this contradicted its statement in the letter of 26 May 2025 that it would not make any final decision until after it had spoken to him. I reject this. There is no contradiction. It is both legitimate and normal for a business to decide to make change and then to consult about it. Indeed, this is what is required by the consultation provision in clause 29 of the Educational Services (Post-Secondary) Award 2020 (Award), which covered Tilakaratne. An employer is required to consult about major change only once it has made a ‘definite decision’ to introduce the change. This does not preclude the possibility of the decision being altered. The result of consultation might be that the employer will change or modify its decision, based on the feedback from those consulted.
[13] Mr Tilakaratne contended that the redundancy process was not a genuine one because Laurus did not identify any ‘employment pool’, and because a competencies document dated 27 May 2025 did not contain a scoring guide to explain how he was ranked against the evaluation criteria. But the Act does not mandate these things, nor do these matters have any factual bearing on the question of whether the requirements of s 389 were satisfied in this case. Mr Tilakaratne said that he disputed the scores that he was given in the competencies document that was submitted to the Commission. He said that some of the tasks listed in the document did not relate to his duties as finance manager. But as Mr Terblanche explained, the purpose of this document was not to assess Mr Tilakaratne’s performance in his old role, but to assess his suitability for the new one. Further, provided that the scores reflected the genuine views of the company (I find that they did), it is irrelevant whether the scores were ‘correct’.”
Tilakaratne v Laurus Education Pty Ltd [2025] FWC 2646 deloivered 8 September 2025 per Colman DP