Redundancy tests in fair work cases

This extract from a recent decision of the Fair Work Commission in an unfair dismissal case sets out the legal principles which are involved in determining one of the most important tests for the issue, namely whether the employer no longer required the employee’s job “to be performed by anyone”.

“Whether RICS no longer required Mr Siriphone’s job to be performed by anyone because of changes in the operational requirements of RICS’s enterprise: Section 389(1)(a)

The first requirement of section 389 is section 389(1)(a). There are two parts to section 389(1)(a). The first part is whether the person’s employer no longer required the person’s job to be performed by The second part only arises for consideration if the first part is satisfied. The second part is that job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. That is, the second part is concerned with the reason/s for the job being no longer required. Both parts of section 389(1)(a) must be satisfied.

The first part of the section 389(1)(a) was considered by a Full Bench of the Commission in Ulan Coal Mine Limited v Henry Jon Howarth and others [2010] FWAFB 3488 (Ulan). The Full Bench in Ulan observed that section 389(1)(a) refers to a person’s “job”.²⁷ The Full Bench went on to distinguish the person’s job from the duties performed by the ²⁸ A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee.²⁹ The effect of the decision of the Full Bench in UIan is that the first part of section 389(1)(a) must be approached by answering whether RICS no longer required Mr Siriphone’s job – as so defined – to be performed by anyone. It is worth observing that the Full Bench in UIan did not consider the second part of section 389(1)(a). It is evident that the Full Bench was concerned only with the first part of section 389(1)(a) and proceeded on the basis that the jobs were no longer required because of changes in the operational requirements of the employer’s enterprise.³⁰

Mr Siriphone contended that the requirement of section 389(1)(a) was not In summary terms, Mr Siriphone contended that his “role” continued to be performed by Ms Lee and that it had not been eliminated.³¹ Mr Siriphone contended that his “role“ had been reassigned to Ms Lee. RICS contended that the requirement of section 389(1)(a) was satisfied. In summary terms, RICS contended that Ms Gemmell‘s return to work from parental leave into her position as Event Manager resulted in Ms Lee returning to her substantive position as Event Specialist.³² At the hearing, Ms Blaney explained that RICS required a team of four comprised of three Event Specialists and one Event Manager across four locations, namely, Australia, Hong Kong, Singapore and China. Ms Blaney explained that RICS required one such role in each of those locations. Ms Gemmell’s return to work meant that there were five employees in that team performing those roles, and two of the five (Ms Gemmell and Mr Siriphone) were located in Australia.

On application of Ulan, the enquiry posed by the first part of section 389(1)(a) is to be determined by reference to Mr Siriphone’s “job”. As such, it is irrelevant whether the duties that Mr Siriphone performed in coordinating and organising events continued to be performed by Ms Lee or Ms Gemmell or anyone On the material before me, I am satisfied that Ms Gemmell’s return to work from parental leave resulted in a situation where there were four Event Specialists in the team in circumstances where RICS had a need for three Event Specialists in the team. I am further satisfied that RICS had a need for only one Event Manager or Event Specialist in Australia. The job performed by Mr Siriphone was Event Specialist. Moreover, Mr Siriphone was one of the two employees (along with Ms Gemmell) in Australia. Clearly, there was one more Event Specialist in the team than was required and one more Australian based member of the team than was required. For those reasons, I am satisfied that RICS no longer required Mr Siriphone’s job to be performed by anyone.

The second part of section 389(1)(a) requires that Mr Siriphone’s job was no longer required because of changes in the operational requirements of The FW Act does not define the term “operational requirements”. Operational requirements has been held to be a broad term that permits consideration of many matters including, but not limited to, past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve the efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.³³ The Explanatory Memorandum to the FW Act³⁴ gave some possible examples of a change in the operational requirements of an enterprise. The examples found in the Explanatory Memorandum are:

a machine is now available to do the job performed by the employee;

the employer‘s business is experiencing a downturn and therefore the employer only

needs three people to do a particular task or duty instead of five;

or the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.

RICS contended that Mr Siriphone’s job was no longer required because Ms Gemmell’s return to work from parental leave created one more employee in the team than RICS determined was ³⁵ I am satisfied that is the reason for Mr Siriphone’s job being no longer required. However, I am not satisfied that reason can be characterised as being “because of changes in the operational requirements of RICS”. It is not the case that Mr Siriphone’s job was no longer required because of the past and present performance of RICS, the state of the market in which RICS operates, steps taken by RICS to improve its efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, or for any of the examples referred to in the Explanatory Memorandum. That observation should not be misunderstood as suggesting that those reasons are the only reasons that can characterised as being because of changes in operational requirements. Those reasons are non-exhaustive examples of reasons that can be characterised as being because of changes in operational requirements.

Furthermore, I do not consider that the reason can be properly characterised as the application of good management. To the contrary, as discussed below, Mr Siriphone’s job was no longer required because of deficient management practices associated with Ms Gemmell’s leave and subsequent return to work.

Importantly, the structure of the team remained unchanged by Ms Gemmell’s parental leave. That is, prior to Ms Gemmell’s period of parental leave, there were four team members comprised of three Event Specialists supervised by an Event There was one team member based in Australia, Hong Kong, Singapore and China respectively. That structure was unchanged during Ms Gemmell’s period of parental leave. That structure was unchanged following Mr Siriphone’s dismissal. Two points arise from those facts. The first point is that

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there was no change in the operational requirements of RICS. The required number of team members, the location where such team members were to work and the management structure of the team were unchanged before Ms Gemmell’s period of leave, during her period of leave and after Mr Siriphone’s dismissal. The fact alone leads me to find that the reason for Mr Siriphone’s job being no longer required cannot be characterised as being because of changes in the operational requirements of RICS. The second point is that an excess of one job in the team was inevitable unless Ms Gemmell returned to work at around the same time that the person employed to cover her absence (Mr Siriphone) ceased employment with RICS.

In the Form F3 – Employer Response to Mr Siriphone’s unfair dismissal application, RICS stated that Ms Gemmell returned to work earlier than she had previously ³⁶ In giving evidence at the hearing, Ms Blaney said Ms Gemmell had not completed a leave form or the like, which indicated when her return date from leave would be. However, the effect of Ms Blaney’s witness statement and oral evidence at the hearing was that Ms Gemmell had estimated to RICS that she would return to work in around March 2025.³⁷ The comments in the Form F3 to the effect that Ms Gemmell returned to work earlier than previously planned is inconsistent with Ms Blaney’s evidence. I reject any suggestion that Ms Gemmell returned to work earlier than previously planned. I also accept Mr Siriphone’s evidence that immediately before applying for the job that Ms Gemmell told him that she was scheduled to return to work in March 2025.³⁸ Notwithstanding that Mr Siriphone and Ms Gemmell had previously worked together (at RICS)³⁹, I find it difficult to accept that Ms Gemmell would tell Mr Siriphone in June 2024 that she was scheduled to return to work in March 2025, but not have told her employer, RICS. Based primarily on Ms Blaney’s evidence, I find that RICS well understood that Ms Gemmell was returning to work from parental leave in March 2025.

As recorded above, Ms Gemmell returned to work from parental leave on approximately 4 March 2025.
There was a clear misalignment between Ms Gemmell return to work in March 2025 and the end date specified in Mr Siriphone’s Contract (22 July 2025). It was this misalignment, and not any changes in the operational requirements, that resulted in the excess of one job in the team. In her witness statement, Ms Blaney stated:

I enquired with Ms Gemmell to why she believed the advert had been for a 12 month contract and she confirmed that the role should have gone live earlier, however there had been a delay with the approval from Finance.⁴⁰

Mr Siriphone cross-examined Ms Blaney about this delay at the Ms Blaney repeated her understanding based upon a conversation that she had with Ms Gemmell that Finance took longer than had been hoped to sign off on approving the Event Specialist role that was filled by Mr Siriphone. Ms Blaney further explained that RICS have a very arduous sign off process for approving any jobs.

I accept Ms Blaney’s evidence that there was a delay caused by the Finance Department in approving the Event Specialist role that was filled by Mr It was this delay that created an inevitable excess job in the team in circumstances where RICS understood that Ms Gemmell was returning to work in March 2025, which was some three to four months before the end date specified in Mr Siriphone’s Contract. Without the delay it appears that Mr

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Siriphone would have ceased employment at or around the same time that Ms Gemmell returned to work from parental leave. Without the delay, an excess job in the team was unlikely.

The second part of the requirement in section 389(1)(a) requires a finding to be made as to the reason for the person’s job being no longer required, and then an exercise in characterisation as to whether that reason is because of changes in operational I find that the reason for Mr Siriphone’s job being no longer required was the delay in approving the Event Specialist role filled by Mr Siriphone. Mr Siriphone’s job was no longer required in circumstances where I have found there was no change in the operational requirements of RICS. I do not characterise the reason, which occurred in those circumstances, as being because of changes in operational requirements.

For those reasons, I am not satisfied that the requirement of section 389(1)(a) of the FW Act has been Accordingly, I find that Mr Siriphone’s dismissal was not a genuine redundancy within the meaning of section 389 of the FW Act.”

Siriphone v Royal Institution Of Charted Surveyors / RICS Australasia Pty Ltd [2025] FWC 2305 delivered 7 August 2025 per Walkaden C