The termination of employment of an employee on the basis that the employer has determined that it can longer afford to pay an employee his or her level of salary does not by itself justify the conclusion that the employer no longer requires the job performed by the employee to be performed by anyone, which is the essence of the definition of a genuine redundancy. The concept is more tricky to comprehend that it is tempting to first think.
“Introduction
[1]
Igor Demin was the Head Coach at the Tuggeranong Vikings Swim Club (the Club). The Club is a community swim club that has been operating since 1991. It is managed by a committee of volunteers and governed by a constitution. While Mr Demin was Head Coach, it also had a number of casual coaches and volunteer coaches. Mr Demin commenced in the Head Coach role in April 2024 on a salary of $110,000 per annum.
[2]
During his tenure a new committee was elected. After assessing the Club’s finances, the committee decided it could no longer afford to pay Mr Demin that salary. It asked him to accept a salary of $65,000 per annum to do the same job or he would be dismissed by reason of redundancy. When Mr Demin declined the request, he was dismissed. He brought proceedings in this Commission for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (the FW Act). His unfair dismissal application was dismissed because it was found that the dismissal was a case of genuine redundancy.
[3]
Mr Demin seeks permission to appeal and, if permission is granted, to appeal the decision of a Deputy President of the Commission of 10 November 2025, dismissing his application for an unfair dismissal remedy: Demin v Tuggeranong Vikings Swim Club Inc [2025] FWC 3351. For the reasons that follow, Mr Demin’s dismissal was not a case of genuine redundancy. We grant permission to appeal, uphold the appeal, quash the decision, and remit the matter to be redetermined.
[2026] FWCFB 191
DECISION
[2026] FWCFB 191
2
Decision of the Deputy President
[4]
The FW Act provides, at s 385(d), that a person cannot be found to be unfairly dismissed if the Commission is satisfied that the dismissal was a case of genuine redundancy. The term ‘genuine redundancy’ is defined in s 389 of the Act:
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a)
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
(b)
the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) 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:
(a)
the employer’s enterprise; or
(b)
the enterprise of an associated entity of the employer.
[5]
The decision commences by setting out the facts, which were largely uncontested. The Deputy President then reproduced s 389 and noted that she was required to consider three matters. First, whether the Club no longer required Mr Demin’s job to be performed by anyone due to operational changes. Second, whether the Club complied with consultation obligations under a relevant modern award or enterprise agreement. Third, whether it would have been reasonable to redeploy Mr Demin within the enterprise.
[6]
After referring to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) and making reference to relevant authority, including the Full Bench decisions in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 (Ulan Coal) and Adams v Blamey Community Group [2016] FWCFB 7202, the Deputy President addressed the first question. The Deputy President’s finding was:
[36] Having considered the evidence and submissions, I am satisfied and find that the Applicant’s role with a salary of $110,000 no longer exists and has not been replaced.
[37] There were clear changes in the operational requirements, that being the financial position of the Club. It was reasonable and appropriate for the Club to reduce its costs, particularly to avoid the risk of trading while insolvent.
[7]
The Deputy President then addressed the second question. The decision records that the Fitness Industry Award 2020 (the Award) was the appropriate award and clause 27, the consultation clause, is set out. The Deputy President then found that:
[40] In this case, I am satisfied that the Respondent met its obligations to consult. It gave written notice to the Applicant on 25 May 2025 in addition to the other correspondence outlined above. Further, the Treasurer met with him to discuss the situation. Overall, I am satisfied that the Club took reasonable steps to consult with the Applicant, including to explain its financial position.
[8]
Turning to the third question, the decision records the following finding:
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[43] For the purposes of section 389(2) of the Act, the Commission must consider whether 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. There must be an appropriate evidentiary basis for such a finding. The word ‘redeployed’ in section 389(2) of the Act should be given its ordinary and natural meaning, which is to ‘transfer to another job, task or function’.
[44] The Applicant was offered redeployment involving a reduced salary which he declined. There was no evidence of other alternative positions to which the Applicant could have been redeployed.
[9]
The Deputy President concluded that she was satisfied that Mr Demin’s employment came to an end for reason of genuine redundancy and so his unfair dismissal application must be dismissed. An order dismissing the application was issued with the decision.
The appeal
[10]
Mr Demin seeks to appeal the decision of the Deputy President. He seeks permission to appeal, that the appeal be allowed, the decision quashed and the matter be remitted for re-determination. He raises five grounds of appeal.
[11]
The first ground contends that the Deputy President erred by misapplying s 389(1)(a). The error is described as an error of law which arose because the Deputy President assessed whether Mr Demin’s $110,000 role continued, rather than whether the Head Coach job continued to be required by the club.
[12]
The second ground also relates to the finding under s 389(1)(a). It challenges the findings that Mr Demin’s role was not replaced and that his duties were distributed among other coaches. It asserts that the following evidence was not considered; evidence about the inability of assistant coaches to perform the Head Coach duties, the club publicly announcing a new Head Coach, and that the coaching structure and program remained in place materially unchanged.
[13]
The third ground contends that the Deputy President made a further error of fact in relation to redeployment for the purposes of s 389(2). Mr Demin challenges the finding that he rejected the redeployment offer. He contends that the evidence was that he did not reject redeployment but rather sought consultation, objected to the pay cut disagreeing that the job was redundant, and requested time for legal advice.
[14]
The fourth ground contends that the Deputy President erred by misapplying s 389(1)(b) and challenges the finding that the Club consulted in accordance with its obligations under the Award. Mr Demin contends that the redundancy decision was made on 21 May and communicated on 24 or 25 May and that the first consultation occurred on 29 and 30 May 2025, after the decision was made. He contends the Award requires consultation before a definite decision is made.
[15]
The fifth ground asserts that the Deputy President failed to consider whether redeployment was reasonable for the purposes s 389(2). The ground challenges the finding of the Deputy President that the offer to stay on as Head Coach at a salary of $65,000 was
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reasonable redeployment without properly assessing whether the role was comparable to the previous role, whether it met Award minimums, and whether it reflected his skills and responsibilities.
[16]
An appeal from a decision in an unfair dismissal matter may only proceed if the Full Bench is satisfied that permission to appeal is warranted on public interest grounds. Mr Demin’s Notice of Appeal lists the following public interest grounds:
1. Important question of principle – correct interpretation of s.389(1)(a).
The decision appears to apply an incorrect legal test by assessing whether the Applicant’s “$110,000 role” continued, rather than whether the job itself continued to be required. This distinction is fundamental to the proper application of the redundancy provisions in the Fair Work Act. The public interest requires clarification of this principle to ensure consistent and lawful decision-making in future redundancy cases.
2. Significant factual error with broader implications – replacement disguised as redundancy.
If an employer can replace a Head Coach with another coach performing the same duties and still characterise the termination as a “genuine redundancy,” this creates a precedent that undermines the purpose of s.389. Allowing such reasoning to stand may encourage employers to avoid unfair dismissal obligations by reframing reductions in salary as redundancies. This has wide implications beyond this case.
3. Public safety and industry standards – accreditation requirements.
The Commission did not address evidence that assistant coaches lacked required accreditation to legally perform Head Coach duties. This raises broader industry issues concerning child safety, accreditation standards, and compliance in the sporting sector. The public has an interest in ensuring that decisions involving accredited coaching roles correctly consider regulatory obligations.
4. Importance of correct application of consultation requirements (s.389(1)(b)).
The evidence indicated that the redundancy decision had already been made before any consultation occurred, contrary to the Award. Whether post-decision communication can constitute “consultation” is an important systemic question affecting many workplaces. Clarification is in the public interest.
5. Public confidence in the integrity of the unfair dismissal framework.
This appeal raises issues of legal error, factual findings contrary to evidence, and procedural fairness. The public interest supports granting permission were doing so promotes confidence in the Commission’s processes and ensures that decisions reflect the statutory framework.
Submissions of the parties
[17]
In his appeal submissions on his first and second ground, Mr Demin contends the Deputy President misapplied s 389(1)(a) as she failed to examine whether his job as Head Coach, including its functions and duties, was no longer required. He asserts the decision incorrectly equates redundancy with a reduction in salary. He submits that the Head Coach role, with all its core duties, was proposed to continue after the dismissal. Mr Demin contends that all core Head Coach duties in fact continued after the dismissal, and identifies Mr Barclay as immediately assuming those duties.
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[18]
The third ground asserts an error of fact. Mr Demin contends that he did not reject an offer of redeployment. Mr Demin’s submission is that the Deputy President mischaracterised his rejection of the offer to continue in the role on less pay as a flat refusal. He submits the correct position is that he sought to negotiate about the change and rejected the pay cut rather than the redeployment. Mr Demin asserts that the mischaracterisation of his response to the offer is a significant error because it undermines the finding under s 389(2) that it was not reasonable to redeploy him in all of the circumstances.
[19]
On the fourth ground, Mr Demin asserts the Deputy President was wrong to find that the Club complied with the consultation obligations under the Award for the purposes s 389(1)(b). The submission is that Mr Demin was not consulted, he was presented with an ultimatum rather than an opportunity to discuss the decision to reduce his pay, and that any discussion occurred after the final decision to terminate the employment was made. Mr Demin contends that acceptance of post-decision meetings as adequate consultation was a misapplication of the law, and that proper application of s 389(1)(b) would have led to a different outcome.
[20]
On the fifth ground, that the Deputy President misapplied s 389(2), Mr Demin submits the redeployment offer was not reasonable, as it was for the same duties at a much lower salary, the lower salary was below the Award minimum, and the Deputy President failed to properly assess the adequacy and lawfulness of the offer in concluding the offer was reasonable for the purposes of the subsection.
[21]
The Club submits that the redundancy was genuine. The decision to restructure was driven by financial necessity, and the Club no longer required a Head Coach at the previous pay grade. The Club further submits that Mr Demin’s position was no longer required as his duties were redistributed among other staff or volunteers. It contends that appointing Mr Barclay as a volunteer or unpaid coach does not equate to maintaining the same position. It contends that the Deputy President correctly applied the statutory test in s 389(1)(a).
[22]
On the second ground, the club submits that there was no error of fact. It submits that Mr Demin’s role as Head Coach did not continue as while some coaching functions persisted, they were redistributed among existing staff and volunteers. The Club further submits that the Deputy President’s finding that the Head Coach role was not replaced was open on the evidence.
[23]
On the third ground, the Club submits that the evidence was that Mr Demin unequivocally declined the offer in writing and the Deputy President was entitled to find that he did. It contends that Mr Demin’s objections to the pay cut and request for further time did not constitute acceptance or a willingness to be redeployed.
[24]
The Club submits that the fourth ground demonstrates no error. The Deputy President’s finding that it complied with the Award obligation to consult was sound. It contends that the Club provided timely notice of the proposed redundancy, engaged in discussions with Mr Demin, and considered his feedback before finalising the decision.
[25]
On the final ground, the Club submits that the redeployment offer was reasonable in all the circumstances, given the Club’s financial constraints and operational needs. It contends that the offer of continued employment at a lower salary was a genuine attempt to retain Mr Demin
[2026] FWCFB 191
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as Head Coach, and that his refusal of the offer was unreasonable. It submits that the Club was not required to create a new position or to maintain the previous salary level. The Club maintains that the Commission correctly applied the statutory test and that the redeployment offer satisfied the requirements of s 389(2).
[26]
The Club opposes the grant of permission to appeal. Its submits that the appeal does not raise any question of public interest or significant error warranting intervention by the Full Bench. It contends that the case involves the application of settled legal principles to the facts and does not raise novel or important questions of law or policy. The decision is said to be consistent with established authority and that there is no broader public or industrial significance.
[27]
The Club submits that the Deputy President made no material error of law or fact and contends that the findings regarding the abolition of the Head Coach position, consultation, and redeployment were open on the evidence and in accordance with the statutory requirements. It contends that the Mr Demin’s complaints amount to a disagreement with factual findings, not legal error.
[28]
The Club also submits that the outcome of this case will not set a precedent or affect the interests of other employers or employees beyond the parties involved. The Club contends that permission to appeal should be refused because the appeal does not meet the public interest threshold required by s 400(1).
Appeal principles
[29]
There is no right to appeal from a decision of the Commission, and an appeal may only be made with permission of the Commission in accordance with s 604(1) of the Act. Section 604(2) requires that the Commission must grant permission if the Full Bench is satisfied that it is in the public interest to do so. In most matters, the Commission otherwise has a broad discretion as to whether to grant permission to appeal.
[30]
In cases which involve an application for permission to appeal from a decision made under Part 3-2 of the FW Act, s 400 confines the discretion of the Full Bench as follows:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[31]
Section 400(1) imposes a higher threshold for permission to appeal in respect of decisions in unfair dismissal proceedings: WorkPac Pty Ltd v Bambach [2012] FWAFB 3206; (2012) 220 IR 313 at [14]. Permission to appeal is confined to circumstances in which the Full Bench is satisfied it is in the public interest to do so. The public interest may arise where a matter raises issues of importance and general application, or if a diversity of decisions at first instance requires guidance from an appellate review, or where the decision manifests an injustice, or is counterintuitive, or the relevant legal principles appear disharmonious with other
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similar matters: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27].
[32]
Further, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error: Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30]. However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
[33]
Mr Demin’s first two appeal grounds go to the Deputy President’s findings under s 389(1)(a). The first ground contends that the Deputy President erred by failing to consider whether whether the Head Coach job continued to be required by the club. The second ground challenges the finding that his role was not replaced as his duties were distributed among other coaches.
[34]
The High Court recently considered s 389 of the FW Act in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 (Helensburgh). Steward J relevantly explained as follows (at [128]-[129]):
Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person’s job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.
The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed “because of changes in the operational requirements of the employer’s enterprise”. However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer’s “enterprise” which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer’s “prerogative”. As Ryan J observed in Jones v Department of Energy and Minerals:
“[I]t is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions.”
[35]
In the same case, the plurality (Gageler CJ, Gordon and Beech-Jones JJ) described the first part of s 389(1)(a) as turning on the existence of a decision in fact made by an employer to no longer require a person’s job to be performed by anyone. The plurality said (at [30]) the provision does not look to whether the employee’s position, in terms of job title, was no longer required, but whether their “job”, in the sense of the nature of the work they performed, was no longer required.
[36]
In her decision, the Deputy President set out the frequently quoted passage in Ulan Coal. The Full Bench also referred to formulation provided by Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones):
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[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674, Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
‘When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.’”
[37]
We consider that there was an error in applying these authorities to the facts in Mr Demin’s case. The facts in the proceedings before the Deputy President included evidence from the Club’s President, Ms Pirie that a decision was made at a committee meeting on 21 May 2025 that the Club could no longer pay its Head Coach a salary of $110,000 per annum. The communications between the parties are set out in the Deputy President’s decision from paragraph [13] onwards. On 25 May 2025, Ms Pirie wrote to Mr Demin informing him of the decision. After explaining that the Club was no longer in a financial position to continue Mr Demin’s employment at the current salary, the letter included the following statement:
Consequently, we are making the Head Coach position at the current salary level redundant. While the position of Head Coach will still be required, it will have a much lower level of remuneration which is closer in line with the minimum entitlements under the Fitness Industry Award 2020 (see Attachment A).
[38]
We note that Attachment A set out the terms of the lower remuneration on offer. The offer reduced the base salary to $65,000 per annum plus the possibility of bonus payments. Mr Demin was given three weeks’ notice of termination of employment and invited to accept redeployment to the new position with the lower salary on or before the conclusion of the notice
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period. It is clear the decision of the committee was not that the Head Coach job was no longer required. It was not a decision that the work should be reorganised, and the duties no longer be carried out or be redistributed to others. It was simply a decision to pay Mr Demin less for the job he was performing.
[39]
Mr Demin responded to the letter on 26 May 2025 and rejected the proposed change to salary. He disagreed that the Head Coach position was redundant. Mr Demin met with the Club’s Treasurer, Mr Busby, on 29 May 2025. They discussed the decision and the Club’s financial position. In a letter dated 29 May 2025, Mr Busby wrote to Mr Demin. That letter included the following:
As stated in the redundancy notice of 25 May 2025, the club is not in a financial position to pay a person of your calibre the salary you are currently receiving. Therefore, as a committee, we made the extremely difficult decision to make the Head Coach position at the current salary redundant.
[40]
In correspondence dated 4 June 2025, the Club’s committee wrote to Mr Demin stating that it had not changed its view regarding the financial position of the club and referred to the 25 May letter for details about the redundancy/redeployment process.
[41]
The termination letter of 14 June 2025 included the following:
On 25 May 2025 you were notified that your employment would end on 14 June 2025 at end of shift unless you accepted redeployment to the new head coach position on or before 14 June 2025.
[42]
The new position referred to, however, was not a new job. It was simply the existing job on less pay.
[43]
Returning to the authorities, the change in this case did not involve a rearrangement of the organisational structure of the Club by breaking up the collection of functions, duties and responsibilities attached to the Head Coach position and distributing them among the holders of other positions. Nor was it the case that Mr Demin would have no duties left to discharge after the reduction in salary. Indeed, he would have the same duties. Consequently, the answer to the critical question stated in Jones, and adopted by the Full Bench in Ulan Coal and the High Court in Helensburgh, of whether Mr Demin would have, after the re-organisation, any duties left to discharge was that he would. The functions or duties to be performed after the drop in pay were the same duties and functions he was required to discharge before the drop in pay. And, as those functions or duties were still to be performed, his position had not become redundant. In the same vein, and by reference to paragraph 1548 of the Explanatory Memorandum, referred to in the Deputy President’s decision (at [29]) and mentioned in Ulan Coal (at [17]), the duties of the previous job persisted. They did not disappear and were not redistributed to other positions. The answer to the question of whether the job previously performed by Mr Demin still existed was that it did. Consequently, his dismissal was not a case of genuine redundancy for the purposes of s 389(1) of the FW Act.
[44]
There was some evidence concerning what happened with the Head Coach position after the dismissal. Ms Pirie and Mr Busby gave evidence that after the dismissal the Club did not employ new coaching staff but used casual and volunteer coaches, including Mr Barclay, to
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perform the duties of the Head Coach. This, however, was described by Ms Pirie in her cross examination and in correspondence to members of the club in a circular on 14 June 2025 as an interim position. No doubt it was a position forced upon the Club by Mr Demin’s refusal to accept the lower salary. It was not the reason for the dismissal.
[45]
Mr Demin submits that his appeal raises issues of public importance as it is affected by legal and factual errors that justify review on appeal. We agree. The decision misapplied the statutory test for genuine redundancy by focusing on the financial situation of the club rather than whether the Head Coach job itself was no longer required to be performed by anyone for the purposes of s 389(1)(a). Mr Demin’s dismissal was not a case of genuine redundancy. The consequence of the error is that Mr Demin has been erroneously denied the opportunity to pursue his unfair dismissal application. We are satisfied that it is in the public interest to grant permission to appeal in those circumstances.
[46]
The remaining errors asserted in Mr Demin’s notice of appeal flow from the error identified in relation to grounds s 389(1)(a). The requirements in s 389(1) are cumulative in that both requirements must be met in order for a dismissal to be a case of genuine redundancy: Zaicos v Tamworth Dementia Respite Service Inc [2025] FWCFB 231 at [36]. The question of redeployment only arises if a dismissal would otherwise constitute a genuine redundancy for the purpose of s 389(1). Had the first part of s 389(1)(a) been properly determined in Mr Demin’s case, there would have been no need to determine the issues of consultation and redeployment which arise under s 389(1)(b) and (2). Accordingly, it is unnecessary for the Full Bench to consider the remaining grounds of appeal relied upon by Mr Demin.
[47]
We note that the Club contends that it was faced with financial difficulties that led it to conclude that it could no longer pay Mr Demin $110,000. Those circumstances led to Mr Demin’s dismissal. While those circumstances do not amount to a genuine redundancy for the purposes of ss 385(d) and 389(1) of the FW Act, they may (if made out) be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable for the purposes of s 385(b). Should the dismissal be found to be unfair for the purposes of s 385(b), the financial position of the Club may also be a consideration in determining whether reinstatement is appropriate under s 390 and, if reinstatement is found to be inappropriate, it may be relevant to the amount of compensation to be paid under s 392. As the hearing before the Deputy President only addressed the issue of whether the dismissal was a case of genuine redundancy, the parties have not had an opportunity to address those matters. As a result, we are not in a position to redetermine Mr Demin’s unfair dismissal application. Consequently, we will refer the matter for the application to be redetermined.
[48]
It will be necessary for a member of the Commission to determine whether the dismissal was harsh, unjust or unreasonable and, if so, what remedy should be awarded. In circumstances in which the Deputy President has also expressed views about consultation and redeployment that may be relevant to the question of unfairness, we consider the better course is that Mr Demin’s application should be referred to another member of the Commission.
Conclusion and disposition
[49]
For the reasons we have given, the dismissal of Mr Demin was not a case of genuine redundancy for the purposes of ss 385(d) and 389(1). Permission to appeal should be granted,
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the appeal allowed, and the decision of the Deputy President quashed. The objection made by the Club on grounds that the dismissal was a case of genuine redundancy must be dismissed and, as we have said, Mr Demin’s unfair dismissal application will be referred to be determined by a member of the Commission.
[50]
The Full Bench makes the following orders:
(a)
Permission to appeal is granted;
(b)
The appeal is allowed;
(c)
The decision and order of Deputy President Dean issued on 10 November 2025 in matter number U2025/11049 are quashed;
(d)
The objection made to Mr Demin’s unfair dismissal application on the basis that his dismissal was a case of genuine redundancy is rejected; and
(e)
The application in matter number U2025/11049 is referred to another member of the Commission to be determined.”
Appeal by Demin v Tuggeranong Vikings Swim Club Inc- [2026] FWCFB 191 delivered 30 July 2026 Gibian VP, Beaumont DP and Slevin DP