This is an interesting decision of the Fair Work Commission dismissing an employer’s defence to an unfair dismissal claim, which was that the dismissal was a genuine redundancy, on the basis that the employer had not sufficiently complied with the consultation obligations provided for by a modern award, and ordering compensation for unfair dismissal on the basis that if the employer had carried out the required consultation, the Deputy President was of the opinion that the employee would have remained employed for a further three weeks.
The Deputy President put it this way
“Conclusion (Merits)
[54]
In consideration of all the relevant factors, I find that the Applicant’s dismissal was unfair and unreasonable, especially as the Applicant was not afforded an opportunity to engage in discussions about the restructure and its impact on her. The Applicant was abruptly dismissed shortly after being informed of the restructure and did not have notice that her job may be at risk.’
What follows is the decision as to the Commission’s reasoning about the unfair dismissal issue.
“Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – consultation obligations not met – jurisdictional objection dismissed – merits considered – dismissal unfair – compensation ordered.
[1]
Ms Brooke Ristiadi (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), stating that she was unfairly dismissed from her employment with Oasis Dental Group (the Respondent) on 17 November 2025.
[2]
The matter was listed for a hearing on 3 March 2026. The Applicant represented herself and the Respondent was self-represented by Ms Adriana Royer as the Operations Manager.
[3]
Section 396 of the Act requires satisfaction of four eligibility requirements before the merits can be considered. I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act. The Applicant was a person protected from unfair dismissal as she met the minimum employment period, was covered by a Modern Award and had earned less than the high-income threshold. Respondent was not a small business employer. The Respondent had raised the jurisdictional objection that the Applicant was genuinely made redundant. Therefore, this jurisdictional objection will need to be determined before considering the merits of the matter.
Background
[4]
The Respondent provides a variety of back-office services to seven dental practices. Those practices who provide a percentage of revenue to cover the cost of the services.
[5]
The Applicant commenced working for the Respondent on 30 September 2024 as a Patient Experience Specialist and her contract stated she was covered by the “National Employment Standards – Salaried”. The Applicant was originally contracted to work 30 hours per week, which was varied to 25 hours per week in December 2024. The Applicant’s hourly rate was also varied in April 2025 and increased to $60 per hour.
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DECISION
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[6]
On 17 November 2025, the Applicant was called into a meeting at 9:30am and was advised that her employment would conclude that day. The Respondent informed the Applicant that following a decision to restructure the company, her position was no longer required, and her duties would be redistributed amongst other members of the team.
[7]
The Applicant was provided a letter dated 17 November 2025 confirming her position had been made redundant. The letter states:
Dear Brooke,
This letter confirms the outcome of our meeting on 17th November 2025 regarding the future of your position at Oasis Dental Group.
Following a review of the Support Office structure and the services that will be delivered to the practices in 2026, the company has made the decision to restructure the Support Office team. This restructure is intended to align our resources with the new operational model, updated practice support systems, and revised priorities for the coming year.
As part of this change, the Patient Experience Specialist role is no longer required in the new structure. As a result, your position has been made redundant. This decision relates only to the organisational restructure and not to your performance or conduct.
Your employment with Oasis Dental Group will end on 17th of November 2025.
[8]
The letter goes on to detail the final payments to be made to the Applicant and states that the Applicant would be paid four weeks’ notice and two weeks’ redundancy pay. Technically, that is incorrect as it should be the other way round – four weeks is the required redundancy pay for the Applicant’s period of service under s.119(2) of the Act and two weeks is the required notice period under s.117(3) of the Act. However, given the total amount is correct, I consider the wording of the letter is of little significance. The Applicant was paid out her accrued leave entitlements.
Is there a genuine redundancy under s.389(1) of the Act?
[9]
The Applicant asserts that the redundancy was not genuine as the duties under her role continue to exist. She argues that her employment was covered by the Health Professionals and Support Services Award 2020 and that, accordingly, the Respondent was required to consult her about any changes to her role. Further, the Applicant also argues that she was not consulted about any vacant roles or opportunities for deployment within the Respondent’s organisation.
[10]
Under s.396 of the Act, I am required to consider whether the redundancy was a genuine redundancy before considering the merits of the application.
[11]
The requirements of genuine redundancy prescribed under s.389 of the Act are:
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1.
The role was no longer required to be performed by anyone because of operational requirements of the employer’s enterprise;1
2.
The Employer had complied with obligations for consultation under the applicable Enterprise Agreement or Modern Award2; and
3.
The offer of redeployment was reasonable in all the circumstances.3
Consideration
1.
Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?
[12]
In Helensburgh Coal Pty Ltd v Bartley & Ors (Helensburgh)4, the majority of the High Court held as follows:
[30] Section 389(1) of the FW Act defines “genuine redundancy”. Unless that provision is satisfied, s 389(2) is not reached. Although there was no dispute that s 389(1)(a) and (b) was satisfied in this case, it is necessary to say something further about s 389(1)(a). It is a factual inquiry about what happened. The first part of s 389(1)(a) turns on the existence of a decision in fact made by an employer. It is the employer’s decision to no longer require a person’s job to be performed by anyone. 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. Section 389(1) refers to a decision by the employer and no one else.
[31] The second part of s 389(1)(a) provides that the job must have ceased to be needed “because of changes in the operational requirements of the employer’s enterprise”. An employer determines what those changes might be or if they are needed. There is no reasonableness inquiry in s 389(1). Therefore, the fact that the employer, due to changes in operational requirements, no longer required the work to be performed by anyone need not have been reasonable.
(citations omitted, emphasis added)
[13]
In Ulan Coal Mines Limited v Howarth and others5, the Full Bench considered redundancy where the job as a collection of “functions, duties and responsibilities” becomes no longer required:
“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:
1 Fair Work Act 2009 (Cth) s 389(1)(a).
2 Ibid s389(1)(b)
3 Ibid s389(2)(a)-(b).
4 [2025] HCA 29 (‘Helensburgh’).
5 [2010] FWAFB 3488 at [17].
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‘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.
(citations omitted)
[14]
As described in her position description, the Applicant’s role included the following duties:6
Overview: The Patient Experience Specialist at Oasis Dental Group (ODG) will play a pivotal role in ensuring that patients receive exceptional care and service across all touchpoints. This newly created role is designed to enhance the overall patient experience by developing structured training for clinicians and staff, setting up the call center, and crafting a comprehensive patient experience manual. The specialist will also be responsible for identifying, proposing, and implementing new systems to improve patient engagement and satisfaction.
Key Responsibilities:
1. Patient Journey Mapping:
•
Map out the entire patient journey, identifying key touchpoints from pre-appointment to post-treatment.
•
Develop visual tools like Lucid Charts to represent this journey, which will be used to present opportunities for improvement.
•
Propose enhancements to key patient interactions and recommend systems to standardize the Oasis Dental experience across all practices.
2. Development of a Comprehensive Patient Experience Manual:
•
Draft and continually refine a patient experience manual that outlines standardized procedures for pre-appointment, intra-appointment, and post-treatment interactions.
•
Ensure that all touchpoints are optimized for seamless communication and engagement, using insights from patient feedback and best practices.
•
Incorporate detailed scripts, digital tools usage (like scanners and patient management software), and personalization protocols into the manual.
3. Training Design and Implementation:
•
Structure and develop training programs for all staff and clinicians that align with ODG’s vision of delivering outstanding patient care.
6 Annexure B to Applicant’s evidence.
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•
Develop materials such as guides, checklists, Loom videos, and role-playing scenarios to ensure staff are well-prepared to handle patient interactions effectively.
•
Create and maintain a training hub that houses all educational resources, ensuring easy access for continuous learning.
4. Call Centre Set-Up and Management:
•
Lead the implementation, and help structure the management of ODG’s call centre, focusing on delivering high-quality patient interaction.
•
Develop scripts and checklists for staff to use when managing new patient bookings, lead follow-ups, and general inquiries, ensuring all communications are on-brand.
•
Propose new systems to enhance call centre efficiency, such as AI tools for appointment reminders and follow-up automation.
5. Proposal and Implementation of New Systems:
•
Regularly assess the effectiveness of current systems and propose new technologies and procedures to improve patient experience.
•
Develop detailed proposals for new systems or processes and work closely with the management team to secure approval and oversee implementation.
•
Ensure that any newly approved systems are integrated into day-to-day operations smoothly, training staff accordingly and updating the patient experience manual as needed.
6. Ongoing Performance Evaluation:
•
Conduct observations and evaluations of staff-patient interactions to ensure consistency in care and communication.
•
Provide detailed performance analyses of key roles such as Treatment Coordinators and front office staff, recommending individualized training programs for improvement.
•
Develop performance metrics for patient interaction quality, utilizing real-time feedback and surveys.
7. Patient Communication and Engagement:
•
Standardize communication practices across all patient touchpoints, ensuring a warm, professional tone is maintained.
•
Enhance the pre-appointment and post-treatment experience through personalized communication, such as tailored follow-up emails, educational content created by the practice and the marketing team, and surveys.
•
Support the implementation and optimization of existing tools, such as patient portals and automated systems for appointment reminders, follow-ups, and feedback collection, to enhance patient engagement and satisfaction.
[15]
In the hearing, the Respondent’s witness, Mr Ari Saikkonen, employed as the Respondent’s Marketing Manager, was questioned by the Applicant about what duties had been redistributed, and to whom. The evidence given was that some duties, such as onboarding and training employees would be undertaken by the individual dental practices, rather than by the Respondent’s staff. The performance evaluations of team members would now be performed
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by the direct managers of the relevant team members and that to his knowledge, patient touch points did not continue to be evaluated. Mr Saikkonen agreed under cross-examination that many of the duties the Applicant had been performing have been redistributed amongst the team.
[16]
The Applicant submitted that as her duties continued to exist, albeit in a redistributed form, her job continued to exist.
[17]
However, as was held by Ryan J in Jones v Department of Energy and Minerals,7 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee”. If those duties are distributed amongst other staff such that no employee has that same collection of function, duties, and responsibilities, then the job no longer exists.
[18]
I am not satisfied that the Applicant’s job continues to be performed by anyone. Some of the duties associated with that job have been absorbed by the individual practice’s staff, some have been redistributed amongst other members of the Respondent’s staff, and some duties are on “hiatus” and are not being performed at all. Therefore, the Respondent does not require the Applicant’s job to be performed by anyone.
2.
Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?
Was the Applicant covered by an Award?
[19]
The Award referenced by the Applicant is the Health Professionals and Support Services Award 2020 (Award). The relevant coverage clause of the Award, states:
4.1 This industry and occupational award covers:
(a) employers throughout Australia in the health industry and their employees in the classifications listed in Schedule A—Classification Definitions to the exclusion of any other modern award; and
(b) employers engaging a health professional employee in the classifications listed in Schedule A—Classification Definitions.
[20]
Under sub-clause (a), the coverage clause requires that the Respondent is in the health industry and employs the Applicant in a role within Schedule A, whereas sub-clause (b), requires that the Applicant is a ‘health professional employee’ engaged in a classification under Schedule A. In reference to the term of a ‘health professional employee’, Schedule B contains a list of applicable roles that fit into the ‘health professional employee’ definition such as allied health professionals such as chiropractors, pharmacists, speech pathologists, to name a few. I consider it unlikely that the Applicant in her administrative role would fall within the definition of “health professional employee”. Therefore, if the Applicant is covered under the Award, she would be covered under clause 4.1(a), rather than 4.1(b).
7(1995) 60 IR 304
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[21]
The first part of clause 4.1(a) requires that the Respondent is in the health industry, which is defined in Clause 4.2 as “employers whose business and/or activity is in the delivery of health care, medical services and dental services.” In its evidence, the Respondent submits its business does not provide health services and provided a list of its employees prior to and following the redundancy. I can confirm that it is apparent that no staff are employed in what I would call a clinical position. They are employed in positions related to finance, administration, marketing, call centre operations, and patient experience.
[22]
However, this does not mean that the Respondent is not in the health industry and are precluded from a finding that its business is covered by the Award. Specifically, clause 4.2 requires that the Respondent’s business or activity is in “the delivery of health care, medical services and dental services”. I consider that the use of the word “and” should be taken to read “or” as in the context the rest of the Award, it is clear that only one of “health care”, “medical services” or “dental services” needs to apply, not all three.
[23]
The Macquarie dictionary defines “delivery” to mean: “the delivering of letters, goods, etc.” “Deliver” is defined to mean:
•
to carry and pass over (letters, goods, etc.) to the intended recipient or recipients;
•
to direct; cast; cause to move in a certain direction: the bowler delivers the ball to the batsman;
•
to give forth or produce: our mines are still delivering 192 million tonnes of coal each year; and
•
to provide a delivery service.
[24]
As can be seen from this definition, the concept of a delivery imports not just the end result (i.e. the dentist’s services), but the series of tasks required in order to achieve that result. I consider that the term is wide enough to include the operations performed by the Respondent to assist in the running of dental practices. Therefore, I am satisfied that the Respondent is in the health industry.
[25]
The second part of clause 4.1(a) requires consideration of whether the Applicant falls into one of the classifications in Schedule A. The Applicant pointed to Support Services employee – Level 7, Support Services employee – Level 8 and Support Services employee – Level 9 as classifications she might fit into. These are set out below.
A.1.7 Support Services employee—level 7
(a) An employee at this level:
(i) is capable of functioning autonomously, and prioritising their work and the work of others within established policies, guidelines and procedures;
(ii) is responsible for work performed with a substantial level of accountability and responsibility;
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(iii) may supervise the work of others, including work allocation, rostering and guidance;
(iv) works either individually or in a team;
(v) may require comprehensive computer knowledge or be required to use a computer on a regular basis;
(vi) possesses developed administrative skills and problem solving abilities;
(vii) possesses well developed communication, interpersonal and/or arithmetic skills; and
(viii) may require formal qualifications at trade or Advanced Certificate or Associate Diploma level and/or relevant skills training or experience.
(b) Indicative roles performed at this level are:
General and administrative services
Food services
Technical and clinical
Gardener superintendent
General clerical supervisor
General services supervisor
Interpreter (qualified)
Medical imaging Administration
Food services supervisor
Senior chef
Dental assistant:
•
Certificate IV or equivalent qualification; or
•
equivalent experience to a Certificate IV qualification as assessed by the employer
Pathology collector—Experienced:
•
Certificate III in pathology collection with 12 months’ or more industry experience as a pathology collector; or
•
unqualified with 2 years’ or more industry experience as a pathology collector
Personal care worker grade 5
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Technical and therapy supervisor
A.1.8 Support Services employee—level 8
(a) Employees at this level will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to independently advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field/s of their expertise.
(b) They are responsible and accountable for their own work; and may have delegated responsibility for the work under their control or supervision, in terms of, inter alia, scheduling workloads, resolving operations problems, monitoring the quality of work produced as well as counselling staff for performance as well as work related matters.
(c) They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They often exercise initiative, discretion and judgment in the performance of their duties.
(d) The possession of relevant post secondary qualifications may be appropriate but not essential.
(e) Indicative typical duties and skills in this level may include:
(i) operating and having responsibility for a complex and diverse payroll system;
(ii) applying detailed knowledge of the organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions for the purposes of assisting in developing policy or new products and services to meet changing market needs or other circumstances;
(iii) using computer software packages including evaluating and determining optimum software solutions or the integration of complex word processing/data/graphics text;
(iv) finalising quotations or costings by applying a detailed knowledge of variable inputs, margins, market conditions, supply and delivery arrangements; or
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(v) preparing internal reports for management in any or all of the following areas:
• account/financial;
• staffing;
• legislative requirement; and
• other significant company activities/operations.
A.1.9 Support Services employee—level 9
(a) Work at this level is usually performed in relation to established priorities, task methodology and work practices to achieve results in line with the organisation goals.
(b) The work may include preparing papers and reports, drafting complex correspondence for senior employees, undertaking activities of a specialist or detailed nature, assisting in the preparation of procedural guidelines, providing, interpreting and analysing information for clients or other interested parties, exercising specific process responsibilities, and overseeing and co-ordinating the work of subordinate staff.
(c) Work at this level includes supervision of a work group, small work area or office within the total organisational structure and co-ordination of a range of organisation functions.
(d) Work is performed under general direction as to work priorities and may be of a technical or professional, project, procedural or processing nature, or a combination of these.
(e) Direction exercised over work performed at this level may be less direct than at lower levels and is usually related to task methodologies and work practices. Employees at this level are expected to set priorities and to monitor work flow in the area of responsibility.
(f) The work at this level requires the application of knowledge usually gained through previous experience in the discipline or from post secondary or tertiary study. The work may require the co-ordination of a range of organisation functions and the exercising of judgment and/or delegated authority in areas where precedents or procedures are not clearly defined.
(g) Independent action may be exercised at this level, e.g. developing procedures, management strategies and guidelines.
(h) Indicative typical duties and skills at this level may include:
(i) supervising staff, setting priorities, monitoring work flow, and the development of strategies or work practices;
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(ii) having responsibility for the development of appropriate training programmes related to group development;
(iii) applying equal employment opportunity and industrial relations principles;
(iv) providing advice in relation to personal and career development related to work requirements;
(v) liaising or communicating with clients or other interested groups;
(vi) general knowledge of the organisation’s operations, combined with specialist knowledge of major activities within the work area; or
(vii) being able to investigate interpret or evaluate information where legislation, regulations, instructions or procedural guidelines do not give adequate or specific answers.
[26]
Comparing the Applicant’s role, as set out in the position description, with the classifications under the Award, I consider that the role of Patient Experience Specialist falls within Support Services Employee – Level 9. The role itself was specialist and was created for the purpose of aligning with organisational goals to enhance the patient experience and to propose and implement new systems. Her duties included leading implementation of the call centre, which included work performed in relation to established business priorities, with a considerable degree of independent action. Her duties also involved preparing detailed manuals and guidelines for patient interactions, developing training for staff and monitoring the performance of treatment coordinators and front office staff.
[27]
The Respondent submitted that the Applicant was paid a considerably higher rate than the Award rate for a Level 9 Support Services Employee. However, that is not relevant as a matter of law. Consideration of whether an employee falls within a classification under an Award is a matter of construing the relevant coverage clauses within the Award, rather than assessing an employee’s rate of pay.
[28]
I am satisfied that the Applicant was covered by the Health Professionals and Support Services Award 2020. Accordingly, the consultation clause at clause 34 of the Award applies.
Did the Respondent comply with the consultation requirements as necessary under the Award?
[29]
Clause 34 sets out the requirements for consultation as a result of major change:
34. Consultation about major workplace change
34.1 If an employer makes a definite decision to make major changes in production,
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program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by
them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on
employees; and
(c) commence discussions as soon as practicable after a definite decision
has been made.
34.2 For the purposes of the discussion under clause 34.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)
their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
34.3 Clause 34.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
34.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 34.1(b).
34.5 In clause 34 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
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(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
34.6 Where this award makes provision for alteration of any of the matters defined at clause 34.5, such alteration is taken not to have significant effect.
[30]
Under Clause 34, as the Respondent made a definite decision to restructure which included possible termination of the Applicant’s employment, the Respondent was required to advise when the Respondent made a decision to restructure, give the Applicant notice of the restructure in writing, discuss what the effect of the restructure would have on her job and any measures it would take to avoid or reduce these adverse effects and commence discussions. That did not occur.
[31]
The Applicant’s evidence is that she was called into a meeting on 17 November 2025 which is when she was advised of the restructure. The Applicant submits there was effectively no consultation as the Respondent did not discuss how the decision to terminate her employment arose nor provided any measures to avoid or reduce this impact. Instead, the Applicant was informed of the termination at the meeting and there were no discussions about how her work would transition nor how this would impact her and what thoughts she might have.
[32]
The purpose of consultation is for the Applicant to be informed of the decision to restructure the business, so she can discuss the proposed changes and be provided with an opportunity to respond. However, the Respondent provided notice to the Applicant only after they already decided to terminate the Applicant’s employment. They did not commence with any discussions nor provide her with an opportunity for her to put any questions or queries forward prior to making a final decision regarding her employment status.
[33]
I find the Respondent did not comply with the consultation requirements under the Award.
3.
Was it 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?
[34]
In Helensburgh, the majority of the High Court held as follows:
[32] Section 389(2) then provides a protection for the dismissed employee and provides that protection by posing a “counter-factual”. It provides that notwithstanding that the employer no longer required the dismissed employee’s job, namely their work or their duties, to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, the person’s dismissal was nonetheless not a case of genuine redundancy “if it would have been reasonable in all the circumstances for the person to be redeployed within … the employer’s enterprise” (emphasis added).
[33] Unlike s 389(1), s 389(2) is qualified by a requirement of reasonableness. 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”. The language is broad.
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[34] Nonetheless, the range of the inquiry permitted by s 389(2) is limited in the sense that the inquiry is in respect of the employer’s (or an associated entity’s) “enterprise” and that the redeployment of the person must have been reasonable “in all the circumstances”…
[35] First, the employer’s “enterprise” in s 389(2) is its “business, activity, project or undertaking”.10 This provides the scope of the inquiry under s 389(2). It is not appropriate for the FWC to disregard the very nature of the employer’s enterprise. It cannot, for example, change the nature of the business, activity, project or undertaking of the employer’s enterprise. The nature of the employer’s “enterprise”, however, is not defined by reference to how the employer uses its workforce to operate its enterprise, or why it does so in that manner.11 Such circumstances are not the “business, activity, project or undertaking”.
[36] Second, the inquiry is whether it would have been reasonable in all the circumstances for the person to be “redeployed” within the employer’s enterprise. “Redeployed” does not require there to be a vacant position. The word “redeploy” does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment. Indeed, the ordinary meaning of “redeploy” – “to rearrange, reorganise, or transfer”12 – envisages some reorganisation or rearrangement. In other words, it does not mean that it would only have been reasonable to redeploy the person if there was a vacant position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not refer to a “job”. The text of s 389(2) therefore does not, on its face, assume that a job is readily available. Rather, “redeployed” looks to whether there was work, or a demand for work, within the employer’s enterprise or an associated entity’s enterprise that could have been performed by the otherwise redundant employee.
[37] Third, the inquiry is whether redeployment “would have been reasonable”. The words “would have been” direct the FWC to consider a hypothetical situation. A hypothetical is inherently a consideration of a situation changed from what it was. The use of the past tense directs attention to the situation at the time of the dismissal. The hypothetical inquiry under s 389(2) therefore asks what, at the time of the dismissal, could have been done to redeploy the employee within the employer’s enterprise.13 In other words, would it, at the time of the dismissal, have been reasonable to redeploy the employee to perform other work within the employer’s enterprise.
[38] Fourth, the inquiry is a reasonableness inquiry. Reasonableness is an objective question to be determined by the FWC. The inquiry does not look to reasonableness only from the point of view of the employer, or only from the point of view of the employee (although they are relevant). It is an inquiry as to reasonableness in the context of the employer’s enterprise, with regard to the nature of that enterprise.
[39] Fifth, the inquiry is whether redeployment would have been reasonable in “all the circumstances”. The words “all the circumstances” are unmistakably broad; they point against the existence of binding rules concerning the application of s 389(2) in all cases irrespective of the circumstances of each particular case. If there were circumstances that were intended to inform whether, in any given case, redeployment would have been reasonable, the legislature would not have used the qualifying phrase “in all the circumstances”.
[40] “[A]ll the circumstances” can include the attributes of the otherwise redundant employee, such as their skill set, experience, training and competencies. “[A]ll the circumstances” can also include those attributes of the employer’s enterprise that concern its workforce, such as: its policies, including appetite for risk; plans; processes; procedures; business choices, such as a decision to terminate a contract in the future and a decision to persist with using contractors; decisions regarding the nature of its workforce, such as whether it has a blended workforce of both employees and contractors; contract terms, such as whether they are “as needs” contracts and whether the contractors are on daily work orders or on some long-term fixed commitment; practical concerns, such as whether redeployment would require the employee to undergo further training; and anticipated changes, such as another employee going on parental leave or retiring, a contract expiring, or a position being performed by a contractor while waiting for an employee to be hired. These are “circumstances” of how an employer uses its workforce to operate its
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enterprise, or why it does so in that manner, which can, depending on the circumstances of the case, bear on whether it would have been reasonable to redeploy an employee within the enterprise. These circumstances are not directed at the size, scope or nature of the enterprise, which are fixed at the date of dismissal.
[35]
The Applicant asserted that there were roles available that she should have been considered for, specifically a Pottsville Front Office Coordinator role, which the Respondent had been recruiting for at the time. The Applicant also stated that as she had 12 years as a treatment coordinator, she could have made a relatively simple transition into that role. The Respondent asserted that the role paid between $33 and $40 per hour, much lower than the Applicant’s pay rate of $60 per hour as a Patient Experience Specialist. The Respondent also asserted that the role was full time on-site and located approximately an hour away from the Applicant’s residence. The Applicant was working part-time on 25 hours per week and was also able to work from home one day a week.
[36]
The Applicant says she would have accepted the role if it had been offered to her and when I asked her in the hearing whether it would have been a demotion she said, “I don’t like seeing things as a demotion, it’s just different. I am very happily employed as a front office coordinator at the moment.” While I understand the Applicant’s perspective, I consider that it would objectively not have been reasonable to redeploy the applicant into the Front Office Coordinator role, or indeed any of the other administrative roles she pointed out.8
[37]
Those roles were between $30 and $40 per hour and were full time roles at a more junior level. Further, had the Respondent offered those roles to the Applicant and then sought to reduce the redundancy entitlement to nil under s.120 of the Act on the basis of suitable alternative employment, I can say with great confidence that they would have been unsuccessful. While I consider the Applicant demonstrates a good attitude in looking at all kinds of roles, on an objective level, I consider it would have been a demotion for the Applicant to be redeployed into the Front Office Coordinator role with a substantially lower hourly rate of pay, substantially more hours of work and at a more junior role to the role that the Applicant had been performing.
[38]
The Respondent did not identify any other roles which may have been available for the Applicant. I am satisfied that, in all circumstances, the Applicant could not be reasonably redeployed.
Conclusion (Genuine Redundancy Jurisdictional Objection)
[39]
I am satisfied that the Applicant’s job was no longer required to be performed by anyone because of operational requirements and I am satisfied that that the Applicant could not be reasonably redeployed. However, I am not satisfied that the Respondent complied with its consultation obligations. That means the dismissal was not a genuine redundancy and the jurisdictional objection is dismissed.
[40]
It is therefore necessary for me to consider the merits of the application and determine whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
8 Annexure F of the Applicant’s evidence
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[41]
Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:
(a)
whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[42]
A valid reason for dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”9 As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.10 The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.11
[43]
I find that the reason for the Applicant’s dismissal was because the Respondent no longer required the Applicant’s job to be performed by anyone. I find this to be a neutral factor, as the reason for dismissal did not relate to any issue of conduct or capacity.
(b)
whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[44]
There was no reason for the dismissal which related to the Applicant’s capacity or conduct and therefore the Applicant was not notified of any such reason. Accordingly, I find this to be a neutral factor. I have considered the lack of consultation about the redundancy as a relevant factor under s.387(h).
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
[45]
There was no unreasonable refusal by the employer to allow the Applicant to have a support person.
[46]
This factor is a neutral consideration.
(e)
if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
[47]
The Applicant was not terminated for unsatisfactory performance.
[48]
This weighs neutrally.
9 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
10 [2021] FWC 4 at 118.
11 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
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(f)
the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[49]
The Respondent did not submit that it was a small business but noted in the Form F3 “the Support Office had 10 employees; practices had their own regular staff.” The Respondent did not submit that the size of the business impacted on the dismissal process. I consider this is a neutral factor.
(g)
the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[50]
The Respondent did not indicate whether it had dedicated human resources staff, and I have not found such a person on the organisational chart provided. I consider this may have had an impact on the procedures followed in effecting the dismissal, as the Respondent believed they were not required to consult the Applicant and misunderstood the Applicant’s entitlement to notice and redundancy pay, as discussed below. I consider this weighs marginally against a finding that the dismissal was unfair.
(h)
any other matters that the FWC considers relevant.
[51]
There are two matters that I find relevant in order to determine if the Applicant’s dismissal was unfair.
[52]
The Respondent submitted that it paid more notice of termination than it was required to, therefore, the Applicant’s termination could not be considered harsh, unjust or unfair. It is appropriate to consider this argument under s.387(h). The Respondent submitted that it was only required to pay two weeks’ notice under the contract, and that it paid four weeks’ instead, as well as an additional two weeks’ which the Respondent said was “ex gratia”. That is not correct. Under the Award, the Respondent was required to pay two weeks’ notice of termination, and four weeks’ redundancy pay. Therefore, the Respondent had paid the Applicant the minimum it was required to under the Award for the Applicant’s period of service – albeit it seems the payment was correct only by accident. Therefore, this is a neutral factor in considering if the Applicant’s dismissal was unfair.
[53]
The second relevant matter in considering whether the Applicant’s dismissal was unfair is the failure to consult. While a failure to consult in accordance with the relevant Award does not automatically lead to a finding that the dismissal was unfair, it is a factor which may weigh in favour of a finding of unfairness.12 In these circumstances, had the consultation requirements been complied with, including a notice of the restructure and consultation to discuss options other than redundancy, I am satisfied that the Applicant would have remained employed with the Respondent for at least another three weeks. The sudden nature of the dismissal, with the Applicant having no notice of the fact that she may be dismissed that day, weighs in favour of a finding of unfairness.
12 English v Tee Ink Pty Ltd [2023] FWC 2805 at [72], citing Gomes v OE & DR Pope Pty Ltd T/A Pope Packaging at [58].
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Conclusion (Merits)
[54]
In consideration of all the relevant factors, I find that the Applicant’s dismissal was unfair and unreasonable, especially as the Applicant was not afforded an opportunity to engage in discussions about the restructure and its impact on her. The Applicant was abruptly dismissed shortly after being informed of the restructure and did not have notice that her job may be at risk.
Remedy
[55]
Given that I have found that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy.
[56]
The Applicant did not seek reinstatement as she has since obtained employment elsewhere.
[57]
Pursuant to section 390 of the Act, this Commission may order:
“390 When the FWC may order remedy for unfair dismissal
(1)
Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)
the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)
the person has been unfairly dismissed (see Division 3).
(2)
The FWC may make the order only if the person has made an application under section 394.
(3)
The FWC must not order the payment of compensation to the person unless:
(a)
the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)
the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[58]
Section 392 sets out the considerations for awarding compensation:
“Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
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(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
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(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[59]
The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket13 and has been applied and developed by Full Benches of the Commission.14
[60]
The assessment of compensation involves the following four-step process, however, this is not a substitute for the words within the Act:
“Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). I am also required to consider the length of service with the employer15 and the ability to find a new role as a relevant factor in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.16
Step 3: Discount the remaining amount for contingencies.17
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment.”
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
[61]
The Applicant was employed with the Respondent for over a year. Had the Applicant been consulted, I find she would have been employed for another three weeks. The Applicant was paid $1,500.00 per week. I find she would have received $4,500.00 (before tax) had she not been unfairly dismissed.
Step 2: Deduct monies earned since termination.
[62]
The Applicant provided ample evidence of the steps she took to mitigate her losses, including by applying for over 90 jobs. I make no deductions for failure to mitigate.
13 (1998) 88 IR 21.
14 Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939.
15 Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).
16 Ibid s392(2)(e).
17 Ibid s392(2)(a), (d) and (f).
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[63]
The Applicant obtained new employment on 19 January 2026. As this is outside of the period of compensation of three weeks following the dismissal, I make no deductions.
Step 3: Discount the remaining amount for contingencies.
[64]
The Applicant was not dismissed because of any misconduct, therefore, I will not make any deductions for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.”
[65]
In Bowden v Ottrey Homes Cobram and District Retirement Villages,18 the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave taxation for determination. I will leave the issue of taxation for determination by the Respondent.
Viability
[66]
No issues of viability were raised by the Respondent.
Order
[67]
The Respondent is ordered to pay the sum of $4,500.00 gross plus superannuation within 21 days upon issuing this Order to the Applicant’s nominated bank account that was on payroll.
[68]
I Order accordingly.”
Ristiadi v Oasis Dental Group Pty Ltd [2026] FWC 2818 delivered 27 July 2026 per Lake DP