This interesting decision of the Fair Work Commission in an unfair dismissal case deals with the relationship between the concept of a genuine redundancy and unfair dismissal. In this case the employer’s defence that the termination of employment arose as a case of genuine redundancy failed, despite a finding that there was a valid reason for the dismissal because the employer was found not to have complied fully with its award obligations to consult with an affected employee about a possible redundancy of the employee’s position (because the employer did not comply with an express term of an applicable modern award requiring some matters to be in writing).
“[1] This decision concerns an application made by Muhammad Ahmad for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The respondent, Suzohapp Australia T/A Transcity Group Pty Ltd, submits that Mr Ahmad was dismissed by reason of genuine redundancy. Mr Ahmad contends that his redundancy was not genuine, and his dismissal was unfair.
[2] For the reasons that follow, Mr Ahmad’s dismissal was not a case of genuine redundancy within the meaning of s 389 of the Act, because the respondent did not discharge its consultation obligation under s 389(2). I have found that Mr Ahmad was unfairly dismissed within the meaning of s 385 of the Act. An order for compensation in the amount of $2,500 gross (less taxation as required by law), plus superannuation, is issued with this decision.
Context
[3] Mr Ahmad commenced employment with the respondent on 12 February 20241 as a full time Electronics Engineer.2 It does not appear to be in dispute that there was no enterprise agreement covering Mr Ahmad’s employment.
[4] On the morning of 31 March 2025, a meeting was held between Mr Ahmad, the respondent’s Global CTO, Mr David McNair and Mr Ahmad’s line manager,3 the Head of Engineering and Design, Clare Scott. At this meeting, Mr McNair explained that the respondent had undertaken an internal operational restructure and Mr Ahmad’s role as Electronics Engineer in Melbourne was no longer required because the products Mr Ahmad had been working on had moved into production, significantly reducing the need for further development engineering work in Australia. Mr Ahmad was advised that ongoing support for those products would be handled by the respondent’s existing engineering teams located overseas. Mr McNair’s evidence was that while redeployment opportunities for Mr Ahmad were considered, there were no suitable alternative roles that matched Mr Ahmad’s skills.
[5] The termination letter dated 31 March 2025 referred to the “outcome of a recent review” by the respondent of its operational requirements and advised Mr Ahmad as follows:4
As a result of internal restructure of R&D resources, the position of Electronics Engineer is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection of your performance.
[6] Mr Ahmad said that no redeployment options were provided to him, nor was there any consultation. Accordingly, Mr Ahmad does not accept that his role was genuinely redundant. Mr Ahmad said that the respondent requires the continuous involvement of the Electronics Engineer for firmware and hardware development. Further, Mr Ahmad said that he was doing tasks which were ongoing, including in anticipation of new products.
[7] Mr Ahmad said that shortly after his dismissal, the respondent advertised for the role of Electronics Service Engineer in Poland, which, in effect, was his role being readvertised or alternatively, a role to which he should have been redeployed. Further, Mr Ahmad said that there was a connection between his dismissal and the concerns he had raised with the respondent about a bullying culture in the office. Mr Ahmad said that he had twice given “honest” feedback to Mr McNair about this, including in a “long and detailed” email to Mr McNair on 28 November 2024, three months prior to his role being made redundant.
Initial matters
[8] For the purposes of s 396(a)-(c) of the Act, there was no dispute that the application was made within the 21-day period required by s 394(2), and Mr Ahmad was protected from unfair dismissal within the meaning of s 382. The respondent did not contend that it was a small business employer within the meaning of s 23 of the Act and accordingly, the question of compliance with the Small Business Fair Dismissal Code did not arise for determination.
[9] Sections 396(d) and 385(d) of the Act require determination of whether the dismissal was a case of genuine redundancy. The parties are in dispute about this matter. Accordingly, I must decide that question before considering the merits of Mr Ahmad’s application.
Was Ahmad’s dismissal a case of genuine redundancy?
[10] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of genuine redundancy, which is defined in s 389 as follows:
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
[11] Section 389 of the Act was recently considered by the High Court in Helensburgh Coal Pty Ltd v Bartley.5 Steward J relevantly explained as follows:6
128 Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person’s job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.
129 The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed “because of changes in the operational requirements of the employer’s enterprise”. However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer’s “enterprise” which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer’s “prerogative”. As Ryan J observed in Jones v Department of Energy and Minerals:
“[I]t is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions.”
(citations omitted)
Was Mr Ahmad’s job no longer required to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise?
[12] As the plurality in Helensburgh Coal said, s 389(1)(a) of the Act – which considers whether the job is no longer required to be performed – “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”.7
[13] Mr McNair gave evidence that in his role, Mr Ahmad contributed to multiple engineering projects, several of which had reached the end of their design phase and were transitioning into production in the respondent’s factory in China. As these transitions occurred, Mr McNair said that the demand for local electronic engineering work of the kind performed by Mr Ahmad “naturally declined,” demonstrated by Mr Ahmad’s decreased workload. Mr McNair said that the respondent conducted a global resource and budget review that began in December 2024 and concluded in January 2025. As an outcome of that review, a decision was made that the role of Electronics Engineer in Australia was no longer required, and this decision was based “entirely on commercial and operational grounds.”8
[14] Mr Ahmad rejects that his job was no longer required and says that the role of Electronics Engineer is crucial. His position is that research and development work in the Melbourne office cannot move forward without this role. Mr Ahmad said that this means “the role is there and someone has to fill it.”9
[15] The evidence before the Commission does not support a finding that the role of Electronics Engineer in Australia is still required, as contended by Mr Ahmad. I accept the evidence of Mr McNair about the operational reasons for the respondent’s decision. Mr McNair was a credible witness and the reasons he provided for Mr Ahmad’s redundancy were rational and convincing. The respondent restructured its relevant operations to, amongst other things, improve efficiency and reduce duplication. As part of this, engineering responsibilities were redistributed across the respondent’s international offices such that Mr Ahmad’s job no longer exists. Further, I accept that the projects Mr Ahmad had been engaged on had advanced beyond the development phase. The evidence before the Commission demonstrates the reduction in Mr Ahmad’s workload as a consequence of this, including that his last “commit” (being the submission of a new version of code for the development of a product)10 was in February 2025 and there have been no additions to this firmware on the respondent’s system at any stage since.11 This corresponds with the time that Mr McNair said that the projects Mr Ahmad was working on transitioned to the production phase. This evidence supports a conclusion that no further engineering work has been performed in respect of these projects since this time. I am satisfied that the respondent no longer required Mr Ahmad’s job to be performed in Melbourne and that his job is not being performed by anyone else. The respondent’s headcount in Australia has remained unchanged since Mr Ahmad’s redundancy and, specifically, the role of Electronics Engineer has not been filled.12
[16] There is no evidence before the Commission that draws a causative link between the redundancy of Mr Ahmad’s role and Mr Ahmad’s allegation that the redundancy was targeted, or in retaliation for raising bullying concerns during his employment. Mr McNair addressed the bullying concerns raised by Mr Ahmad on 28 November 2024 (the same day they were raised),13 and put in place arrangements pending Mr McNair’s return from overseas; invited a direct discussion about the concerns; and stated, “Please do not feel that we are not taking this seriously. I appreciate you raising this concern, as no one should feel disrespected or bullied at work.”14 Mr Ahmad later thanked Mr McNair for discussing the matter and said, “I have trust in your management that this matter is going to [sic] resolved internally.”15
[17] In Mr Ahmad’s application to the Commission, he stated that after Mr McNair’s correspondence the bullying conduct ceased, he saw “behavioural changes” in the attitudes of the relevant persons named, and those persons were thereafter not rude to him (without being friendly).16 Mr Ahmad raised no further bullying concerns after this time. I accept Mr McNair’s evidence that the respondent treated this issue as having been resolved and it was not connected with Mr Ahmad’s dismissal. I do not consider there to have been an ulterior motive for Mr Ahmad’s dismissal three months later, on the evidence before the Commission. However, the Commission should not determine contentions as to unfair selection procedures at this stage of the proceedings, as such matters are relevant to the merits of the unfair dismissal application and Mr Ahmad’s contention that he was dismissed harshly, unjustly or unreasonably.17
[18] The evidence demonstrates, and I find, that the respondent no longer required Mr Ahmad’s job to be performed by anyone because of changes in the operational requirements of its enterprise. It follows that the criterion in s 389(1)(a) of the Act is satisfied.
Was there an obligation upon the respondent to consult?
[19] Section 389(1)(b) of the Act requires the Commission to consider whether the respondent has complied with any obligation in a modern award or enterprise agreement that applied to Mr Ahmad’s employment to consult about the redundancy. As earlier noted, it is not in contest that there is no enterprise agreement that applied to Mr Ahmad in his employment. Mr Ahmad contends that the Professional Employees Award 2020 (Award) applied to him as an engineer performing duties requiring professional qualifications (Award clause A.1.7, experienced engineer level 2).
[20] I agree that the Award applied to Mr Ahmad in his role. The Award is an industry and occupational award. It provides at clause 4.1(a) that it covers employers with respect to their employees performing, relevantly, professional engineering duties who are covered by the classifications in Schedule A, and those employees. There was no relevant dispute in these proceedings that Mr Ahmad’s role fell within the engineering stream of the Award (clause 2.2 and Schedule A). I am satisfied, having regard to the material before the Commission including Mr Ahmad’s role, and his skills and competency report,18 that he meets the definition of a professional engineer as defined (clause 2.2), being an experienced engineer with substantial professional experience as contemplated by classification A.1.7 of the Award.
[21] The consequence of this conclusion is that the Award applied to Mr Ahmad in his employment. Consultation about major workplace change is addressed at clause 25 of the Award. Relevantly, clause 25.1 requires an employer to give notice to and engage in discussions with affected employees if it has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. Clause 25.2 requires that an employer must give all relevant information about the changes in writing to affected employees for the purposes of discussion. “Significant effects” is defined in clause 25.5 to include termination of employment. Those obligations applied to the respondent.
[22] It is not in dispute that Mr Ahmad attended a meeting with the respondent on 31 March 2025. At this meeting, I am satisfied that Mr Ahmad was verbally informed of the change and its effect on his role. He was then provided with a copy of the termination letter. There is no material before the Commission demonstrating that Mr Ahmad received, in writing, all relevant information about the change and any other matters contemplated by clause 25.2. The only available conclusion on the evidence is that Mr Ahmad was not provided with information about these matters in writing for the purposes of discussion, as required by the Award.
[23] For the purposes of s 389(1)(b) of the Act, that the evidence before the Commission does not support a finding that the respondent complied with its Award obligation to consult about the redundancy. It follows that the criterion in s 389(1)(b) of the Act has not been satisfied. I say more about the impact of this conclusion later in this decision.
Would it have been reasonable in all the circumstances for Mr Ahmad to be redeployed within the respondent’s enterprise or the enterprise of an associated entity?
[24] Notwithstanding that the respondent no longer required Mr Ahmad’s job to be performed by anyone because of changes in the operational requirements of its enterprise, Mr Ahmad’s dismissal will nonetheless not be a case of genuine redundancy if it would have been reasonable in all the circumstances for him to be redeployed within the employer’s enterprise.19 This criterion incorporates a requirement of reasonableness.20 Whether redeployment of an employee is considered reasonable will depend on the circumstances that existed at the time of the dismissal.21 The term “redeployed” in s 389(2) is be given its ordinary and natural meaning, which is to “transfer to another job, task or function.”22
[25] Mr Ahmad contends that the respondent did not adequately consider redeployment opportunities for him and referred to an advertised role of Electronics Service Engineer that the respondent advertised in Poland.23 In respect of this position, the relevant evidence before the Commission was as follows:24
(a) the role of Electronics Service Engineer in Poland did not exist at the time Mr Ahmad’s employment ceased;
(b) the role was based on “the production line” on site in Poland;
(c) the role could not be performed remotely;
(d) Mr Ahmad cannot speak Polish;25
(e) the salary for the position was considerably less than Mr Ahmad’s salary at the time his employment ceased;26 and
(f) Mr Ahmad would have considered redeployment to the role in Poland had it been raised with him as a redeployment opportunity at the time of his dismissal.
[26] There is no evidence before the Commission that allows a finding that there was a job, or a position, or other work within the respondent’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mr Ahmad. I am satisfied that the position on site in Poland was not Mr Ahmad’s role being readvertised. Nor did the role exist at the time Mr Ahmad’s employment ceased and was not a reasonable redeployment opportunity for Mr Ahmad in any event having regard to its overseas location, the duties which are to be performed on the production line and the salary which was considerably less than Mr Ahmad’s earnings. Accordingly, I am satisfied, and I find for the purposes of s 389(2) of the Act that it was not reasonable in all of the circumstances for Mr Ahmad to be redeployed within the respondent’s enterprise or the enterprise of an associated entity.
Conclusion on genuine redundancy
[27] I earlier found that the respondent did not discharge its consultation obligation in accordance with s 389(2) of the Act. Accordingly, the dismissal of Mr Ahmad was not a case of genuine redundancy. Having made this finding, I am required to consider the merits of Mr Ahmad’s unfair dismissal application.
Was Ahmad’s dismissal unfair?
[28] In deciding whether the dismissal was unfair, I am required to take into account the matters in s 387 of the Act. I earlier concluded that the respondent no longer required Mr Ahmad’s job to be performed by anyone because of changes in the operational requirements of its enterprise. I am satisfied that Mr Ahmad was dismissed for this reason and for no other reason.27 The reason for the dismissal was not related to Mr Ahmad’s capacity or conduct. As such, I regard the considerations at s 387(a), (b) and (c) to be neutral factors with respect to whether Mr Ahmad’s dismissal was harsh, unjust or unreasonable as they each relate to dismissals for conduct or capacity. Further, s 387(e) concerns dismissals for unsatisfactory performance, not dismissals for redundancy. I am satisfied that this paragraph need not be considered further.28
[29] I further find that there was no unreasonable refusal of a support person on the evidence (s 387(d)).29 The considerations in ss 387(f) and (g) carry little weight in this matter.30
[30] Section 387(h) requires the Commission to take into account any other matters that it considers relevant. In this case, I find that there were sound, defensible and well-founded reasons for Mr Ahmad’s dismissal. The respondent no longer required his job to be performed by anyone because of changes in the operational requirements of its enterprise. I do not consider there to have been an ulterior motive for Mr Ahmad’s dismissal. Nor do I find that Mr Ahmad was unfairly selected or targeted for redundancy for raising bullying allegations three months earlier, there being no evidence to support Mr Ahmad’s contention otherwise. It was not reasonable in all the circumstances to redeploy him. I consider these matters to be relevant to my overall assessment and weigh against a conclusion that the dismissal was harsh, unjust or unreasonable.
[31] To be balanced against these matters is 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.31 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.32 In this case, I am satisfied that the respondent’s failure to consult with Mr Ahmad as required by the Award renders the dismissal unfair within the meaning of s 385 of the Act. This is notwithstanding the valid reason for Mr Ahmad’s dismissal and the appropriate weight I have given to this reason.
Remedy
[32] As to remedy, I find that the reinstatement of Mr Ahmad is inappropriate in the circumstances. Nor is reinstatement sought by Mr Ahmad.33 Rather, he seeks financial compensation.34
[33] 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).35 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.
[34] The consideration commences with an assessment of the remuneration that Mr Ahmad 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 Ahmad’s anticipated period of employment;36 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.37 There is an element of speculation in this task.
[35] As noted by the Full Court of the Federal Court in He v Lewin,38 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:39
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.
[36] In this case, I have accepted that Mr Ahmad’s job was no longer required by the respondent and the “actual state of facts” was that his employment would therefore cease. Had the respondent complied with its Award obligation to consult with Mr Ahmad 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 Ahmad 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 Ahmad was remunerated a gross annual salary of $130,000 per annum,40 which is $2,500 gross per week.41 For the purposes of step 1 in Sprigg, in the week following the dismissal, Mr Ahmad would have received remuneration of $2,500 gross, plus superannuation.
[37] The Commission is required by s 392(2)(e) and (f) to take into account any amounts earned by Mr Ahmad from employment or other work since the dismissal. While there is evidence of Mr Ahmad’s earnings in the period between April and June 2025,42 there is no
evidence that Mr Ahmad 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
[36] above. Accordingly, for the purposes of step 2 in Sprigg, I make no deductions to the provisional compensation sum above based on Mr Ahmad’s earnings.
[38] I have considered whether any discount should be made for contingencies, consistent with step 3 in Sprigg.43 A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.44 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,45 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.
[39] 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. There are no other matters that I consider to be relevant in determining an amount of compensation, apart from those to which I now turn.
[40] There was no evidence or submissions made by the respondent that would warrant an adjustment to the provisional compensation sum, having regard to the viability of the respondent’s business (s 392(2)(a)). The length of Mr Ahmad’s employment with the respondent was approximately 13 months (s 392(2)(b)). This period does not warrant any adjustment to the provisional compensation sum.
[41] I am satisfied that Mr Ahmad made some effort to mitigate his loss (s 392(2)(d)) through the performance of rideshare work, such that no discount to the provisional compensation sum ought to be applied.46 There being no findings of misconduct by Mr Ahmad, 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.
[42] The provisional compensation sum appropriately does not include a component for shock, humiliation or distress (s 392(4)). The amount of compensation which is derived from the above considerations is $2,500 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 Ahmad.
Conclusion
[43] 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.47 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.
[44] I consider it appropriate to make an order that the respondent pay Mr Ahmad the sum of $2,500 gross, less taxation as required by law, plus 12% superannuation. I will order these amounts to be paid within 28 days of this decision.
Disposition
[45] An order is issued separately in PR793839.”
Ahmad v Suzohapp Australia Trading AS Transcity Group Pty Ltd [2025] FWC 3442 delivered 18 November 2025 per Millhouse DP
This interesting decision of the Fair Work Commission in an unfair dismissal case deals with the relationship between the concept of a genuine redundancy and unfair dismissal. In this case the employer’s defence that the termination of employment arose as a case of genuine redundancy failed, despite a finding that there was a valid reason for the dismissal, because the employer was found not to have technically complied fully with its award obligations to consult with the affected employee because the employer did not comply with an express term of an applicable modern award requiring some matters to be in writing.
“[1] This decision concerns an application made by Muhammad Ahmad for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The respondent, Suzohapp Australia T/A Transcity Group Pty Ltd, submits that Mr Ahmad was dismissed by reason of genuine redundancy. Mr Ahmad contends that his redundancy was not genuine, and his dismissal was unfair.
[2] For the reasons that follow, Mr Ahmad’s dismissal was not a case of genuine redundancy within the meaning of s 389 of the Act, because the respondent did not discharge its consultation obligation under s 389(2). I have found that Mr Ahmad was unfairly dismissed within the meaning of s 385 of the Act. An order for compensation in the amount of $2,500 gross (less taxation as required by law), plus superannuation, is issued with this decision.
Context
[3] Mr Ahmad commenced employment with the respondent on 12 February 20241 as a full time Electronics Engineer.2 It does not appear to be in dispute that there was no enterprise agreement covering Mr Ahmad’s employment.
[4] On the morning of 31 March 2025, a meeting was held between Mr Ahmad, the respondent’s Global CTO, Mr David McNair and Mr Ahmad’s line manager,3 the Head of Engineering and Design, Clare Scott. At this meeting, Mr McNair explained that the respondent had undertaken an internal operational restructure and Mr Ahmad’s role as Electronics Engineer in Melbourne was no longer required because the products Mr Ahmad had been working on had moved into production, significantly reducing the need for further development engineering work in Australia. Mr Ahmad was advised that ongoing support for those products would be handled by the respondent’s existing engineering teams located overseas. Mr McNair’s evidence was that while redeployment opportunities for Mr Ahmad were considered, there were no suitable alternative roles that matched Mr Ahmad’s skills.
[5] The termination letter dated 31 March 2025 referred to the “outcome of a recent review” by the respondent of its operational requirements and advised Mr Ahmad as follows:4
As a result of internal restructure of R&D resources, the position of Electronics Engineer is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection of your performance.
[6] Mr Ahmad said that no redeployment options were provided to him, nor was there any consultation. Accordingly, Mr Ahmad does not accept that his role was genuinely redundant. Mr Ahmad said that the respondent requires the continuous involvement of the Electronics Engineer for firmware and hardware development. Further, Mr Ahmad said that he was doing tasks which were ongoing, including in anticipation of new products.
[7] Mr Ahmad said that shortly after his dismissal, the respondent advertised for the role of Electronics Service Engineer in Poland, which, in effect, was his role being readvertised or alternatively, a role to which he should have been redeployed. Further, Mr Ahmad said that there was a connection between his dismissal and the concerns he had raised with the respondent about a bullying culture in the office. Mr Ahmad said that he had twice given “honest” feedback to Mr McNair about this, including in a “long and detailed” email to Mr McNair on 28 November 2024, three months prior to his role being made redundant.
Initial matters
[8] For the purposes of s 396(a)-(c) of the Act, there was no dispute that the application was made within the 21-day period required by s 394(2), and Mr Ahmad was protected from unfair dismissal within the meaning of s 382. The respondent did not contend that it was a small business employer within the meaning of s 23 of the Act and accordingly, the question of compliance with the Small Business Fair Dismissal Code did not arise for determination.
[9] Sections 396(d) and 385(d) of the Act require determination of whether the dismissal was a case of genuine redundancy. The parties are in dispute about this matter. Accordingly, I must decide that question before considering the merits of Mr Ahmad’s application.
Was Ahmad’s dismissal a case of genuine redundancy?
[10] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of genuine redundancy, which is defined in s 389 as follows:
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
[11] Section 389 of the Act was recently considered by the High Court in Helensburgh Coal Pty Ltd v Bartley.5 Steward J relevantly explained as follows:6
128 Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person’s job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.
129 The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed “because of changes in the operational requirements of the employer’s enterprise”. However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer’s “enterprise” which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer’s “prerogative”. As Ryan J observed in Jones v Department of Energy and Minerals:
“[I]t is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions.”
(citations omitted)
Was Mr Ahmad’s job no longer required to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise?
[12] As the plurality in Helensburgh Coal said, s 389(1)(a) of the Act – which considers whether the job is no longer required to be performed – “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”.7
[13] Mr McNair gave evidence that in his role, Mr Ahmad contributed to multiple engineering projects, several of which had reached the end of their design phase and were transitioning into production in the respondent’s factory in China. As these transitions occurred, Mr McNair said that the demand for local electronic engineering work of the kind performed by Mr Ahmad “naturally declined,” demonstrated by Mr Ahmad’s decreased workload. Mr McNair said that the respondent conducted a global resource and budget review that began in December 2024 and concluded in January 2025. As an outcome of that review, a decision was made that the role of Electronics Engineer in Australia was no longer required, and this decision was based “entirely on commercial and operational grounds.”8
[14] Mr Ahmad rejects that his job was no longer required and says that the role of Electronics Engineer is crucial. His position is that research and development work in the Melbourne office cannot move forward without this role. Mr Ahmad said that this means “the role is there and someone has to fill it.”9
[15] The evidence before the Commission does not support a finding that the role of Electronics Engineer in Australia is still required, as contended by Mr Ahmad. I accept the evidence of Mr McNair about the operational reasons for the respondent’s decision. Mr McNair was a credible witness and the reasons he provided for Mr Ahmad’s redundancy were rational and convincing. The respondent restructured its relevant operations to, amongst other things, improve efficiency and reduce duplication. As part of this, engineering responsibilities were redistributed across the respondent’s international offices such that Mr Ahmad’s job no longer exists. Further, I accept that the projects Mr Ahmad had been engaged on had advanced beyond the development phase. The evidence before the Commission demonstrates the reduction in Mr Ahmad’s workload as a consequence of this, including that his last “commit” (being the submission of a new version of code for the development of a product)10 was in February 2025 and there have been no additions to this firmware on the respondent’s system at any stage since.11 This corresponds with the time that Mr McNair said that the projects Mr Ahmad was working on transitioned to the production phase. This evidence supports a conclusion that no further engineering work has been performed in respect of these projects since this time. I am satisfied that the respondent no longer required Mr Ahmad’s job to be performed in Melbourne and that his job is not being performed by anyone else. The respondent’s headcount in Australia has remained unchanged since Mr Ahmad’s redundancy and, specifically, the role of Electronics Engineer has not been filled.12
[16] There is no evidence before the Commission that draws a causative link between the redundancy of Mr Ahmad’s role and Mr Ahmad’s allegation that the redundancy was targeted, or in retaliation for raising bullying concerns during his employment. Mr McNair addressed the bullying concerns raised by Mr Ahmad on 28 November 2024 (the same day they were raised),13 and put in place arrangements pending Mr McNair’s return from overseas; invited a direct discussion about the concerns; and stated, “Please do not feel that we are not taking this seriously. I appreciate you raising this concern, as no one should feel disrespected or bullied at work.”14 Mr Ahmad later thanked Mr McNair for discussing the matter and said, “I have trust in your management that this matter is going to [sic] resolved internally.”15
[17] In Mr Ahmad’s application to the Commission, he stated that after Mr McNair’s correspondence the bullying conduct ceased, he saw “behavioural changes” in the attitudes of the relevant persons named, and those persons were thereafter not rude to him (without being friendly).16 Mr Ahmad raised no further bullying concerns after this time. I accept Mr McNair’s evidence that the respondent treated this issue as having been resolved and it was not connected with Mr Ahmad’s dismissal. I do not consider there to have been an ulterior motive for Mr Ahmad’s dismissal three months later, on the evidence before the Commission. However, the Commission should not determine contentions as to unfair selection procedures at this stage of the proceedings, as such matters are relevant to the merits of the unfair dismissal application and Mr Ahmad’s contention that he was dismissed harshly, unjustly or unreasonably.17
[18] The evidence demonstrates, and I find, that the respondent no longer required Mr Ahmad’s job to be performed by anyone because of changes in the operational requirements of its enterprise. It follows that the criterion in s 389(1)(a) of the Act is satisfied.
Was there an obligation upon the respondent to consult?
[19] Section 389(1)(b) of the Act requires the Commission to consider whether the respondent has complied with any obligation in a modern award or enterprise agreement that applied to Mr Ahmad’s employment to consult about the redundancy. As earlier noted, it is not in contest that there is no enterprise agreement that applied to Mr Ahmad in his employment. Mr Ahmad contends that the Professional Employees Award 2020 (Award) applied to him as an engineer performing duties requiring professional qualifications (Award clause A.1.7, experienced engineer level 2).
[20] I agree that the Award applied to Mr Ahmad in his role. The Award is an industry and occupational award. It provides at clause 4.1(a) that it covers employers with respect to their employees performing, relevantly, professional engineering duties who are covered by the classifications in Schedule A, and those employees. There was no relevant dispute in these proceedings that Mr Ahmad’s role fell within the engineering stream of the Award (clause 2.2 and Schedule A). I am satisfied, having regard to the material before the Commission including Mr Ahmad’s role, and his skills and competency report,18 that he meets the definition of a professional engineer as defined (clause 2.2), being an experienced engineer with substantial professional experience as contemplated by classification A.1.7 of the Award.
[21] The consequence of this conclusion is that the Award applied to Mr Ahmad in his employment. Consultation about major workplace change is addressed at clause 25 of the Award. Relevantly, clause 25.1 requires an employer to give notice to and engage in discussions with affected employees if it has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. Clause 25.2 requires that an employer must give all relevant information about the changes in writing to affected employees for the purposes of discussion. “Significant effects” is defined in clause 25.5 to include termination of employment. Those obligations applied to the respondent.
[22] It is not in dispute that Mr Ahmad attended a meeting with the respondent on 31 March 2025. At this meeting, I am satisfied that Mr Ahmad was verbally informed of the change and its effect on his role. He was then provided with a copy of the termination letter. There is no material before the Commission demonstrating that Mr Ahmad received, in writing, all relevant information about the change and any other matters contemplated by clause 25.2. The only available conclusion on the evidence is that Mr Ahmad was not provided with information about these matters in writing for the purposes of discussion, as required by the Award.
[23] For the purposes of s 389(1)(b) of the Act, that the evidence before the Commission does not support a finding that the respondent complied with its Award obligation to consult about the redundancy. It follows that the criterion in s 389(1)(b) of the Act has not been satisfied. I say more about the impact of this conclusion later in this decision.
Would it have been reasonable in all the circumstances for Mr Ahmad to be redeployed within the respondent’s enterprise or the enterprise of an associated entity?
[24] Notwithstanding that the respondent no longer required Mr Ahmad’s job to be performed by anyone because of changes in the operational requirements of its enterprise, Mr Ahmad’s dismissal will nonetheless not be a case of genuine redundancy if it would have been reasonable in all the circumstances for him to be redeployed within the employer’s enterprise.19 This criterion incorporates a requirement of reasonableness.20 Whether redeployment of an employee is considered reasonable will depend on the circumstances that existed at the time of the dismissal.21 The term “redeployed” in s 389(2) is be given its ordinary and natural meaning, which is to “transfer to another job, task or function.”22
[25] Mr Ahmad contends that the respondent did not adequately consider redeployment opportunities for him and referred to an advertised role of Electronics Service Engineer that the respondent advertised in Poland.23 In respect of this position, the relevant evidence before the Commission was as follows:24
(a) the role of Electronics Service Engineer in Poland did not exist at the time Mr Ahmad’s employment ceased;
(b) the role was based on “the production line” on site in Poland;
(c) the role could not be performed remotely;
(d) Mr Ahmad cannot speak Polish;25
(e) the salary for the position was considerably less than Mr Ahmad’s salary at the time his employment ceased;26 and
(f) Mr Ahmad would have considered redeployment to the role in Poland had it been raised with him as a redeployment opportunity at the time of his dismissal.
[26] There is no evidence before the Commission that allows a finding that there was a job, or a position, or other work within the respondent’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mr Ahmad. I am satisfied that the position on site in Poland was not Mr Ahmad’s role being readvertised. Nor did the role exist at the time Mr Ahmad’s employment ceased and was not a reasonable redeployment opportunity for Mr Ahmad in any event having regard to its overseas location, the duties which are to be performed on the production line and the salary which was considerably less than Mr Ahmad’s earnings. Accordingly, I am satisfied, and I find for the purposes of s 389(2) of the Act that it was not reasonable in all of the circumstances for Mr Ahmad to be redeployed within the respondent’s enterprise or the enterprise of an associated entity.
Conclusion on genuine redundancy
[27] I earlier found that the respondent did not discharge its consultation obligation in accordance with s 389(2) of the Act. Accordingly, the dismissal of Mr Ahmad was not a case of genuine redundancy. Having made this finding, I am required to consider the merits of Mr Ahmad’s unfair dismissal application.
Was Ahmad’s dismissal unfair?
[28] In deciding whether the dismissal was unfair, I am required to take into account the matters in s 387 of the Act. I earlier concluded that the respondent no longer required Mr Ahmad’s job to be performed by anyone because of changes in the operational requirements of its enterprise. I am satisfied that Mr Ahmad was dismissed for this reason and for no other reason.27 The reason for the dismissal was not related to Mr Ahmad’s capacity or conduct. As such, I regard the considerations at s 387(a), (b) and (c) to be neutral factors with respect to whether Mr Ahmad’s dismissal was harsh, unjust or unreasonable as they each relate to dismissals for conduct or capacity. Further, s 387(e) concerns dismissals for unsatisfactory performance, not dismissals for redundancy. I am satisfied that this paragraph need not be considered further.28
[29] I further find that there was no unreasonable refusal of a support person on the evidence (s 387(d)).29 The considerations in ss 387(f) and (g) carry little weight in this matter.30
[30] Section 387(h) requires the Commission to take into account any other matters that it considers relevant. In this case, I find that there were sound, defensible and well-founded reasons for Mr Ahmad’s dismissal. The respondent no longer required his job to be performed by anyone because of changes in the operational requirements of its enterprise. I do not consider there to have been an ulterior motive for Mr Ahmad’s dismissal. Nor do I find that Mr Ahmad was unfairly selected or targeted for redundancy for raising bullying allegations three months earlier, there being no evidence to support Mr Ahmad’s contention otherwise. It was not reasonable in all the circumstances to redeploy him. I consider these matters to be relevant to my overall assessment and weigh against a conclusion that the dismissal was harsh, unjust or unreasonable.
[31] To be balanced against these matters is 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.31 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.32 In this case, I am satisfied that the respondent’s failure to consult with Mr Ahmad as required by the Award renders the dismissal unfair within the meaning of s 385 of the Act. This is notwithstanding the valid reason for Mr Ahmad’s dismissal and the appropriate weight I have given to this reason.
Remedy
[32] As to remedy, I find that the reinstatement of Mr Ahmad is inappropriate in the circumstances. Nor is reinstatement sought by Mr Ahmad.33 Rather, he seeks financial compensation.34
[33] 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).35 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.
[34] The consideration commences with an assessment of the remuneration that Mr Ahmad 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 Ahmad’s anticipated period of employment;36 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.37 There is an element of speculation in this task.
[35] As noted by the Full Court of the Federal Court in He v Lewin,38 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:39
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.
[36] In this case, I have accepted that Mr Ahmad’s job was no longer required by the respondent and the “actual state of facts” was that his employment would therefore cease. Had the respondent complied with its Award obligation to consult with Mr Ahmad 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 Ahmad 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 Ahmad was remunerated a gross annual salary of $130,000 per annum,40 which is $2,500 gross per week.41 For the purposes of step 1 in Sprigg, in the week following the dismissal, Mr Ahmad would have received remuneration of $2,500 gross, plus superannuation.
[37] The Commission is required by s 392(2)(e) and (f) to take into account any amounts earned by Mr Ahmad from employment or other work since the dismissal. While there is evidence of Mr Ahmad’s earnings in the period between April and June 2025,42 there is no
evidence that Mr Ahmad 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
[36] above. Accordingly, for the purposes of step 2 in Sprigg, I make no deductions to the provisional compensation sum above based on Mr Ahmad’s earnings.
[38] I have considered whether any discount should be made for contingencies, consistent with step 3 in Sprigg.43 A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.44 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,45 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.
[39] 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. There are no other matters that I consider to be relevant in determining an amount of compensation, apart from those to which I now turn.
[40] There was no evidence or submissions made by the respondent that would warrant an adjustment to the provisional compensation sum, having regard to the viability of the respondent’s business (s 392(2)(a)). The length of Mr Ahmad’s employment with the respondent was approximately 13 months (s 392(2)(b)). This period does not warrant any adjustment to the provisional compensation sum.
[41] I am satisfied that Mr Ahmad made some effort to mitigate his loss (s 392(2)(d)) through the performance of rideshare work, such that no discount to the provisional compensation sum ought to be applied.46 There being no findings of misconduct by Mr Ahmad, 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.
[42] The provisional compensation sum appropriately does not include a component for shock, humiliation or distress (s 392(4)). The amount of compensation which is derived from the above considerations is $2,500 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 Ahmad.
Conclusion
[43] 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.47 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.
[44] I consider it appropriate to make an order that the respondent pay Mr Ahmad the sum of $2,500 gross, less taxation as required by law, plus 12% superannuation. I will order these amounts to be paid within 28 days of this decision.
Disposition
[45] An order is issued separately in PR793839.”
Ahmad v Suzohapp Australia Trading AS Transcity Group Pty Ltd [2025] FWC 3442 delivered 18 November 2025 per Millhouse DP