It is not unusual for an employer to seek to rely upon the “genuine redundancy” jurisdictional defence to an unfair dismissal claim but to fail in that defence due for example to the employer being found not to have not consulted with the employee in compliance with any obligation in a modern award or enterprise agreement; see secs 385 and 389 of the Fair Work Act. But that does not by itself remnder the dismsal unfair.
Accordingly an unfair dismissal claim may succeed if the applicant can satisfy the Fair Work Commission that the dismissal was unfair or fail because the Commission concludes that despite the jurisdictional defence failing the dismissal was nonetheless not unfair in all the circumstances.
“Application for an unfair dismissal remedy
[1] On 1 January 2025, Mr Kauri Taumaunu made an application to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. Mr Taumaunu alleges that he was unfairly dismissed from his employment with United Personnel Traffic Pty Ltd (United) on 13 December 2024.
[2] United opposed the application, raising a jurisdictional objection on the grounds that the dismissal was a case of genuine redundancy. Following a determinative conference, I issued a decision upholding the jurisdictional objection and dismissing Mr Taumaunu’s application.
[3] Mr Taumaunu was granted permission to appeal my decision with the Full Bench finding the dismissal was not a case of genuine redundancy because United had failed to meet the consultation obligations of the United Personnel Pty Ltd and CFMEU Union Collective Agreement 2023-2027 (the Agreement).
[4] The application was remitted to me to determine the merits. A hearing was held on 21 October 2025. Mr Taumaunu represented himself in this matter and gave evidence on his own behalf. United was represented by Mr Angus Macpherson. United’s Operations Manager, Mr Tihema Miller gave evidence in support of their case.
[5] For the reasons that follow, I have found that Mr Taumaunu was unfairly dismissed within the meaning of s 385 of the Act. An order for compensation in the amount of $4830.77 (less taxation as required by law), plus superannuation, is issued with this decision.
The Full Bench decision
[6] There are three elements to be considered when determining if a dismissal is a case of genuine redundancy:
- The Employer must no longer require the job to be done by anyone (s 389(1)(a))
- The employer must have complied with an obligation to consult under an award or agreement (s 389(1)(b)), and
- there mut also be no reasonable opportunity to redeploy the employee in the employer’s
business or an associated business (s 398(2)).
[7] If all of these requirements are met, then the dismissal will be a genuine redundancy. If any are not met, then the dismissal is not a case of genuine redundancy.
[8] In considering Mr Taumaunu’s appeal, the Full Bench confirmed my findings as they related to s 389(1)(a) and s 389(2). The Full Bench did, however, allow Mr Taumaunu’s appeal with respect to s 389(1)(b), concluding that United failed to comply with their consultation obligations arising from the enterprise agreement. With this requirement not met, the Full Bench determined Mr Taumaunu’s dismissal was not a case of genuine redundancy. In these circumstances, it is not necessary for me to further consider these questions, nor to restate the background and facts of the matters that have already been set out in the earlier decisions.
Evidence and Submissions
[9] The evidence and submissions of the parties in the merits hearing focussed in large part on matters already dealt with by the Full Bench. As stated above, I do not intend to restate them in this decision. There was however some additional material submitted by the parties that was not considered in the first two decisions. This material relates in large part to the question of the adequacy of the consultation that was conducted and included audio recordings taken by Mr Taumaunu. The first recording captured a short discussion between Mr Taumaunu and Mr Miller the evening of the 19 November 2024 (the same day that Mr Taumaunu received a text notification about his redundancy). The second recording captures a discussion between Mr Taumaunu and his union delegate Ms Jodi Tillerson. This discussion was held 10 December 2024, the same day that Mr Taumaunu received the email confirmation of his redundancy. Mr Taumaunu argues these transcripts confirm there was no consultation throughout November, with these discussions being prompted by Mr Taumuanu, after he had been advised of United’s decision. Having reviewed the audio recordings, I accept that these communications were initiated by Mr Taumuanu, not United, and that neither conversation could reasonably be viewed as consultation.
[10] During the hearing, United maintained their view that the dismissal was a genuine redundancy. With respect to consultation United also points to the 19 November 2024 discussion, as confirmation the Mr Miller had advised Mr Taumaunu of a “slowdown”.1 Mr Taumaunu pointed out, and I agree, that no such information is provided to Mr Taumaunu during this conversation.2
[11] United further argue they were open to providing Mr Taumaunu more time to consider his options, but it was Mr Taumaunu who created the immediacy and wanted to go and leave and end the employment rather than engage in the consultation process. Consistent with the Full Bench’s reasoning, any consultation that may have occurred, clearly occurred after the decision had been made. I am satisfied that the only question Mr Taumaunu was being consulted about, was whether he wished to take his Building Employees Redundancy Trust (BERT) payment and end his employment or whether he preferred to revert to casual employment.
[12] United further submitted that a discussion was held in late October in which “a downturn in business” was discussed.3 Mr Taumaunu does not recall this meeting and notes that United’s own summary of this meeting does not include any reference to the potential for redundancies.
Consideration
[13] The question of whether a dismissal was a case of genuine redundancy is one of the four preliminary matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application. It has already been determined that the dismissal was not a case of genuine redundancy, because the company did not comply fully with its consultation obligations under the applicable award. As to the other preliminary matters, I note that the application was made within the 21-day period prescribed by the Act; Mr Taumaunu was a person protected from unfair dismissal; and the Small Business Fair Dismissal Code was not applicable because the company was not a small business employer at the time of the dismissal.
[14] The criteria that I must consider when deciding whether Mr Taumaunu’s dismissal was harsh, unjust, or unreasonable are set out at s.387 of the Act. My consideration of each criteria follows below.
Section 387(a) – valid reason related to capacity or conduct
[15] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.6
[16] It has been established that Mr Taumaunu’s employment ended because United no longer required the work he performed done by anyone as a result of a downturn in work, such that United could not sustain the roles of its 13 permanent employees.7 This was a change to the operational requirements of the business.8 It follows that, in those circumstances, the reason for the dismissal did not relate to Mr Taumaunu’s capacity or conduct, and s 387(a) should be regarded as a neutral matter with respect to the question of whether the dismissal was harsh, unjust or unreasonable.9
Section 387(b) – notification of valid reason
[17] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).10
[18] Because Mr Taumaunu’s employment was terminated due to operational changes to the business, which were not related to his capacity or conduct, s387(b) is also a neutral factor in relation to the question of whether Mr Taumaunu’s dismissal was harsh, unjust or unreasonable.11
Section 387(c) – opportunity to respond
[19] Section 387(c) is also predicated on there being a reason for dismissal related to the capacity or conduct of the employee. It follows that s.387(c) is a neutral factor in relation to the question of whether Mr Taumaunu’s dismissal was harsh, unjust or unreasonable.
Section 387(d) – support person
[20] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[21] Mr Taumaunu submitted that at no stage was he offered a formal meeting to discuss the dismissal and was therefore denied the opportunity to have a support person.12
[22] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”13
[23] On Mr Taumaunu’s own admission, there was no meeting or discussion of the kind to which a support person could reasonably have been present. Notwithstanding this, I have been provided with no evidence to suggest that Mr Taumaunu had, at any stage, requested and been denied a support person. I treat this consideration as neutral.
Section 387(e) – warning about unsatisfactory performance
[24] Section 387(e) is predicated on there being a reason for dismissal related to unsatisfactory performance. Mr Taumaunu’s performance is not in question in this matter. It follows that s.387(e) is a neutral factor in relation to the question of whether Mr Taumaunu’s dismissal was harsh, unjust or unreasonable.
Section 387 (f) and (g) – size of the employer and access to Human Resource expertise
[25] Mr Taumaunu submits that “The Respondent had managerial capability and union involvement but failed to properly follow the consultation clauses in the enterprise agreement.”
[26] United on the other hand submitted that “it followed proper procedures in effecting the Applicant’s dismissal” and that “its procedures were fair”.14
[27] United is a business of reasonable size. There is no evidence that either its size or access to human resources management specialists or expertise was a material factor in the procedures followed to give effect to the dismissal. I treat this consideration as neutral.
Section 387 (h) – other relevant matters
[28] Section 387(h) requires the Commission to take into account any other matters it considers relevant.
[29] Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.
[30] In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.15
[31] In the appeal decision, the Full Bench found that United did not meet its consultation obligations under clauses 10.3, 10.4, and 10.5 of the Agreement.
[32] In Maswan v Escada Textilvertrieb T/A ESCADA16 (Escada), Vice President Watson said: “The failure to notify and consult with Mr Maswan in accordance with the award is a serious defect in the procedure.”17 His Honour went on to say: “The failure to consult is not a trivial matter.”18
[33] I have not been persuaded by United’s further submissions regarding consultation and instead find that the recording of Mr Taumaunu’s discussion with Mr Miller, and Ms Tillerson confirm that the United failed to provide Taumaunu with clear or accurate information about the situation, and the impact on his permanent employment arrangement. 19
[34] Having regard to the Full Bench’s findings, I am satisfied that United failed to follow the consultation provisions applicable to the Applicant. This constituted a significant procedural deficiency. United has not presented a cogent explanation or persuasive justification capable of offsetting or excusing that failure. United’s failure to meet its consultation obligations adds significant weight to a finding that Mr Taumaunu’s dismissal was harsh unjust and unreasonable.
Was Mr Taumaunu’s dismissal unfair?
[35] In deciding whether the dismissal was unfair, I am required to take into account the matters in s 387 of the Act. It has been established that United no longer required Mr Taumaunu’s job to be performed by anyone because of changes in the operational requirements of its enterprise. I am satisfied that Mr Taumaunu was dismissed for this reason and for no other reason. The reason for the dismissal was not related to Mr Taumaunu’s capacity or conduct. As such, I regard the considerations at s 387(a), (b), (c) and (e) to be neutral factors with respect to whether Mr Taumaunu’s dismissal was harsh, unjust or unreasonable as they each relate to dismissals for conduct or capacity. I have found that there was no unreasonable refusal for a support person on the evidence (s 387(d)) and that United’s capacity to respond to the situation appropriately was not materially impacted by its size or lack or human resource expertise. The balance of my considerations therefore falls to s 387 (h)
[36] This conclusion is consistent with the decision of Deputy President Coleman, in Alan Matvikov v Dale Air Pty Ltd,20 in which, having similarly found Mr Matvikov’s dismissal was not a ‘genuine redundancy because of a failure to comply fully with Award consultation
provisions, the Deputy President went on to say:
“It does not automatically follow from this conclusion that the dismissal was unfair. Rather, the Commission must proceed to consider the merits of the unfair dismissal application, taking into account the matters in s 387(a) to (h). It is well-established that redundancy is not a ‘valid reason for dismissal related to capacity or conduct’ (s 387(a)), because in a redundancy situation the employee’s capacity and conduct are not at issue. Rather, the reason for redundancy is to be considered under s 387(h), ‘any other matters the Commission considers relevant’. A dismissal that is not a genuine redundancy within the meaning of s 389 may nevertheless have occurred for a legitimate reason. That is the case here. The company did not need Mr Matvikov’s position to be performed by anyone because of changes in the market and in the demand for work.”
[37] In this matter, I am similarly satisfied that United had a defensible reason for dismissing Mr Taumaunu – in that United no longer required the work he performed done by anyone. However, this must be balanced against the Respondent’s failure to discharge its consultation obligations pursuant to the Award. A failure to consult may, but does not necessarily, mean a dismissal is harsh, unjust or unreasonable.21 It is a matter that needs to be considered together with the other factors in s 387 of the Act and the overall assessment of fairness.22
[38] In this case, I am satisfied that the respondent’s failure to meet its consultation obligations was a serious defect in the procedure which resulted in Mr Taumaunu not being consulted in the manner contemplated by the Agreement and renders the dismissal unfair within the meaning of s 385 of the Act.
Remedy
[39] As to remedy, Mr Taumaunu does not seek reinstatement. Rather, he seeks financial compensation. I find that the reinstatement of Mr Taumaunu is inappropriate in the circumstances.
[40] The Commission must not order compensation unless it is appropriate (s 390(3)). In assessing compensation, the Commission is required by s 392(2) of the Act, to take into account all of the circumstances of the case. I consider these circumstances in the analysis that follows. I do so by reference to the long-established methodology for assessing compensation in unfair dismissal cases as outlined by the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).23 The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount 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.
[41] The consideration commences with an assessment of the remuneration that Mr Taumaunu would have received, or would have been likely to receive, had he not been dismissed (s 392(2)(c)). This requires an estimate of Mr Taumaunu’s anticipated period of employment;24 that is, how long he would have remained in employment, and the remuneration he would have received or been likely to receive during that period.25 There is an element of speculation in this task.
[42] As noted by the Full Court of the Federal Court in He v Lewin,26 in determining the remuneration the employee would have, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts:27
“In determining the remuneration that the employee would have received, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts… In each case, it is necessary for the Commission to address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”
[43] In this case, it has been established that Mr Taumaunu’s job was no longer required by United and the “actual state of facts” was that his employment would therefore cease. Considering the requirements of clause 10.3, 10.4 and 10.5 of the Agreement, had United fully complied with its obligation to consult with Mr Taumaunu about the redundancy that led to his dismissal, it would have taken, in my view, a period of one week. Accordingly, the remuneration that Mr Taumaunu would have received or been likely to receive if he had not been dismissed without consultation would have been a further one-week of remuneration. Mr Taumaunu provided evidence of his last two pays ($5,863.72 and $3,797,82 gross).28 These amounts were not contested by United. Given Mr Taumaunu’s income fluctuated from week to week, I consider it appropriate to take an average of these two amounts when determining the appropriate compensation. For the purposes of step 1 in Sprigg, the evidence before me indicates that in the week following the dismissal, Mr Taumaunu would likely have received remuneration of $4830.77 gross, plus superannuation.
[44] The Commission is required by s 392(2)(e) and (f) to take into account any amounts earned by Mr Taumaunu from employment or other work since the dismissal. There is no evidence that Mr Taumaunu accrued any earnings in the one-week period immediately following his dismissal, which is the relevant period to consider in light of my conclusion at paragraph 43 above. Accordingly, for the purposes of step 2 in Sprigg, I make no deductions to the provisional compensation sum above based on Mr Taumaunu’s earnings.
[45] I have considered whether any discount should be made for contingencies, consistent with step 3 in Sprigg.29 A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.30 However, in circumstances
where the one-week anticipated period of employment has entirely passed, I do not consider that in the circumstances of this case,31 a deduction should be made for contingencies. This is because there is no relevant uncertainty that needs to be accounted for in that one-week period.
[46] With respect to step four in Sprigg, I have considered the impact of taxation. Compensation will be determined as a gross amount, and it will be left to the respondent to deduct any amount of taxation required by law.
[47] There was no evidence or submissions made by United that would warrant an adjustment to the provisional compensation sum, having regard to United’s viability (s 392(2)(a)). The length of Mr Taumaunu’s employment with United was approximately two years and 2 weeks. (s 392(2)(b)). This period does not warrant any adjustment to the provisional compensation sum.
[48] I am satisfied that Mr Taumaunu made some effort to mitigate his loss (s 392(2)(d)), such that no discount to the provisional compensation sum should be applied. There being no findings of misconduct by Mr Taumaunu, I am not required by s 392(3) of the Act to reduce the amount of compensation I would otherwise order by an appropriate amount. Accordingly, I make no reduction of this kind. There was no submission that any amount of compensation should be subject to payment by instalments (s 393). No order will be made to that effect.
[49] The provisional compensation sum appropriately does not include a component for shock, humiliation or distress (s 392(4)). There are no other matters that I consider to be relevant in determining an amount of compensation. The amount of compensation which is derived from the above considerations is $4830.77 gross (less applicable taxation as required by law), plus superannuation. This is less than the compensation cap in s 392(5) of the Act in relation to Mr Taumaunu.
Conclusion on Remedy
[50] Having applied the formula in Sprigg, I am nevertheless required to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.32 I am satisfied that the above analysis takes into account the matters set out in s 392(2) of the Act, and the compensation that I have determined is, appropriately, neither excessive nor inadequate having regard to all the circumstances of the application.33
[51] I consider it appropriate to make an order that United pay Mr Taumaunu the sum of
$4830.77 gross, less taxation as required by law, plus applicable superannuation payable under the Agreement. I will order these amounts to be paid within 28 days of this decision.”
Taumaunu v United Personnel Traffic Pty Ltd [2025] FWC 3940 delivered 24 December 2025 per Durham C