To rely upon the jurisdictional defence of genuine redundancy, an employer defending an unfair dismissal case on that basis is required to demonstrate full, sincere, meaningful and genuine compliance with the statutory elements of the defence. Here is an excellent passage from a decision of the Fair Work Commission to that effect. In my view this is an extract from a very important case from a senior member of the Fair Work Commssion.
“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
(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.”
 Genuine redundancy is a complete defence to an unfair dismissal application (per Ulan
Coal Mines Limited v Honeysett and others  FWAFB 7578 at , (2010) 199 IR 363).
 I am required to decide whether the dismissal was a case of genuine redundancy before
considering the merits of the application (per s.396).
 Section 389 requires a series of stepped findings: firstly, whether the Applicant’s job is
redundant; secondly whether the employer complied with any applicable consultation
obligations under a modern award or agreement and thirdly whether it would have been
reasonable to redeploy the Applicant in another role (see Pankratz v Regional Housing Limited
 FWC 1259 at -).
 FWC 2871
Consideration – Was the Applicant’s “job” made redundant because of operational
 Section 389(1)(a) of the FW Act refers to an employer making a decision about an
employee’s “job”. A job involves “a collection of functions, duties and responsibilities
entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (per
Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) 196 IR 32,  FWAFB
3488 at  citing Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308).
 The Full Bench in Roy Morgan Research Ltd v K Baker  FWCFB 8936 at 
expressed the view that an employer must provide evidence beyond “mere assertions [of a]
desire to do things differently” (at , -). At paragraph  the Full Bench said:
“As was noted by Deputy President Gooley, the Appellant is entitled to restructure its HR
team. However, if it wishes to contest an application for relief in respect of the
termination of an employee made redundant as a consequence on the basis that the
redundancy was due to the changed operational requirements of its enterprise (ss.385(d)
and 389(1) of the Act), it must produce evidence to the Commission to support such a
proposition, including evidence of the changed operational requirements.”
 There must be an appropriate evidentiary basis for the Commission’s findings and the
relevant facts are usually peculiarly within the knowledge of the employer respondent rather
than the dismissed employee. Therefore, if an employer wishes to rely on the ‘genuine
redundancy’ exclusion then they would ordinarily be expected to adduce evidence that they no
longer required the dismissed employee’s job to be performed by anyone because of changes
in the operational requirements, that they met their consultation obligations and that it would
not have been reasonable in all the circumstances to redeploy the dismissed employee
(Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130,
 FWCFB 714 at ).
 There are practical limits on the material that will need to be put by employers, as there
are limits in the other matters heard by the Commission, to avoid defeating the intent of the
genuine redundancy exclusion – in this regard an employer need only satisfy the Commission
on the balance of probabilities (Kieselbach and Amity Group Pty Ltd, PR973864 at -).
 The Full Bench in Teterin v Resource Pacific Pty Ltd  FWCFB 4125 at -,
(2014) 244 IR 252 at 261-263 explored the question of onus in some detail. The Full Bench
accepted that the notion of an onus of proof imports legal doctrines that should have no part in
the Commission’s procedural or decisional process (at ). The Full Bench noted that the
evidentiary onus, being “the burden of adducing or pointing to sufficient evidence to raise an
issue for determination by the court”, is borne by the party bearing the risk of non-persuasion
as to the fact in issue (at -).
 In this matter Trojan Wake Ski and Snow carried the risk of non-persuasion regarding
the elements of s.389.
 FWC 2871
 In my view Trojan Wake Ski and Snow did not meet its evidentiary onus. The material
contained within Mr Newlan’s statement, reproduced in full in paragraph  above, does not
travel beyond mere assertions. His statement does not provide any sound evidentiary basis upon
which I could be satisfied that Ms Bowler’s position was made redundant because of changes
in operational requirements. Frankly, the statement looks to me like a computer-generated
collection of management buzzwords and contains almost nothing of substance relevant to these
 I am not satisfied on the evidence that Trojan Wake Ski and Snow made a decision that
it no longer required Ms Bowler’s job to be done by anyone because of changes in the
operational requirements of the employer’s enterprise.
 The employer’s genuine redundancy defence must fail.
Consideration – Did the Respondent comply with any applicable consultation
 Trojan Wake Ski and Snow’s genuine redundancy defence also fails on the second limb
because, on the evidence provided, the employer did not comply with the consultation
obligations under clause 34 of the General Retail Industry Award 2020 (the Award).
 Clause 34 of the Award required the employer to take certain steps once it made a
definite decision to make major changes in organisation or structure that are likely to have
significant effects on employees. ‘Significant effects’ is defined in clause 34.5 to include
“termination of employment.”
 Ms Bowler’s original application squarely raised the consultation obligations under
clause 34 as in issue in her case. Trojan Wake Ski and Snow led no evidence at all in relation
to the process by which Ms Bowler was dismissed, let alone any evidence of consultation.
 From Ms Bowler’s evidence (reproduced at paragraph  above) it is clear that no
consultation took place at all with her in relation to the apparent decision by the employer to
make a position redundant.
 I am not satisfied that the employer complied with its obligations to consult about the
redundancy under the Award.
Consideration – Would it have been reasonable in all the circumstances to redeploy the
 Finally s.389 requires consideration of whether it would have been reasonable in all the
circumstances for Ms Bowler to be redeployed within Trojan Wake Ski and Snow’s enterprise
at the time that her job was made redundant.
 Neither party led any evidence about the existence of alternative positions to which Ms
Bowler could have been redeployed. In the circumstances I am not satisfied that it would have
been reasonable to redeploy Ms Bowler to another position.”
Bowler v Trojan Wake Ski and Snow Pty Ltd  FWC 2871 delivered 31 October 2023 per Easton DP