“[27] Section 389(2) also provides that a dismissal will not be a genuine redundancy if it would be reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.
[28] In Helensburgh Coal Pty Ltd v Bartley [2021] FWCFB 2871 at [8], the Full Bench adopted the following description of the principles concerning redeployment as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.
(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.
[29] In this case the circumstances were that the redundancy of Ms Taylor’s role was part of an ongoing review of Classic Sports’ operations that had gone on for some months. Two new roles were created during this period. They were created as part of the review. They were created, advertised, recruited and appointed in a process that commenced in July 2024 with appointments being made on 18 November 2024. They were the Regional Account Manager – NSW Metro South and National Teamwear Manager roles. Ms Taylor was not made aware that there was a restructure that would affect her. There had been no consultation with her and no suggestion that her role would be made redundant. Ms Taylor was qualified to perform at least the Regional Account Manager – NSW Metro South role. She did not apply for the role because
she did not know that her position was to be made redundant. She said that she could perform the role as she had been assisting in a related role for some months. She was not told that would be the case until 24 November 2024. a week after the appointments to the new roles were made. I note that the person appointed did not take up the role until 2 December 2024, a week after Ms Taylor was dismissed.
[30] Mr Smart contended that because an offer was made to someone else on 18 November 2024 the role was not available at the time Ms Taylor’s position was made redundant. Mr Smart accepted that there had been internal discussions about making Ms Taylor’s role redundant prior to 24 November 2024. The decision was not made the same day of the dismissal. Calculations prepared for Ms Taylor’s termination pay were prepared on 21 November 2024. Mr Smart said he had been considering making Ms Taylor’s role redundant in the weeks prior to that. Mr Smart also said that during the review other employees were encouraged and did take up new roles within the business.
[31] I find that given the timing of the recruitment process it would have been reasonable in all of the circumstances to redeploy Ms Taylor into the Regional Account Manager – NSW Metro South role.
[32] Given my findings above that the Clerks Award applied and Ms Taylor was not consulted about her role being made redundant and that she could have been redeployed to another role, I reject the proposition that Ms Taylor’s dismissal was a case of genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[33] As the dismissal was not a case of genuine redundancy, it is left to consider whether the dismissal was harsh, unjust or unreasonable. In considering that question I must take into account the matters set out in s 387 of the Act.
[34] Ms Taylor was dismissed for operational reasons. The dismissal was not a reflection on her conduct or performance. Consequently, s 387(a), going to whether there was a valid reason for the dismissal related to capacity or conduct, is not relevant. Similarly, s 387(b), which goes to whether the employee was notified of the valid reason related to capacity or conduct, is not relevant. Subsection 387(c) and (d), going to whether the employee was given an opportunity to respond to the reason and was permitted to have a support person, is also not relevant. Section 387(e) goes to warnings about unsatisfactory performance and is also not relevant here. Section 387(f) goes to the size of the enterprise. Because Classic Sports had 19 employees at the time of Ms Taylor’ dismissal, I do not find this to be a relevant factor.
[35] Section 387(g) goes to whether dedicated human resource management specialists or expertise would likely impact on the procedures followed in effecting the dismissal. Classic Sports did not have dedicated human resource specialists. If it did e, I expect it would not have taken the course that it did and would have complied with its obligations to consult and/or redeploy Ms Taylor into the new role. I find this to be a factor in favour of a finding that the dismissal was harsh, unjust or unreasonable.
[36] Section 386(h) requires that I consider other relevant matters. I consider it is relevant that the decision to dismiss was made without giving Ms Taylor information about the restructure and the opportunity to discuss whether she could fill one of the new roles under the new arrangements.
[37] In this case there was scope for some accommodation of Ms Taylor in the new structure by offering her a new role. Mr Smart focussed on the suitability of the candidates chosen for the roles. No doubt the candidates who took the roles were well suited, however Ms Taylor as an existing employee should have been given the opportunity to take on the role. Mr Smart said he did not believe Ms Taylor was the best candidate for the role that she nominated as the role she would have applied for, Regional Account Manager – NSW Metro South, and doubted that the work she had done assisting in a similar role made her a better candidate for the role than the person selected. That is beside the point. It was unfair on Ms Taylor to not let her know her position was in jeopardy and thereby deprive her of the opportunity to make a case for being redeployed into the new role. While the decision that her position would be made redundant may not have been in contemplation at the commencement of the recruitment process for the new role, it certainly was before the successful candidate was offered the position in the week before Ms Taylor was dismissed. It was unreasonable to not give Ms Taylor the opportunity to consider taking up the role before she was dismissed.
[38] For these reasons I am satisfied that Ms Taylor’s dismissal was harsh, unjust or unreasonable.
[39] In all of the circumstances, I am satisfied that Ms Taylor was unfairly dismissed within the meaning of s 385 of the Act.
Remedy
[40] Ms Taylor did not seek reinstatement. Reinstating Ms Taylor either to her former position or another position would not be appropriate in these circumstances as it would likely result in displacing another employee. Consequently, I am satisfied that reinstatement is inappropriate. Ms Taylor seeks compensation. I am satisfied that it is appropriate to make an order for payment of compensation in lieu of reinstatement.
[41] Section 392(2) of the Act requires all of the circumstances of the case be taken into account when determining an amount to be paid as compensation in lieu of reinstatement. I find the following circumstances relevant to an order for compensation. Ms Taylor was dismissed because her position was made redundant; she was not consulted about redundancy; she was denied the opportunity to have input into any of the decisions made leading to the restructure; she was not provided with information about the restructure. I also find that there was scope for Ms Taylor to be accommodated in the new structure. Despite the misgivings of Mr Smart, which I consider could have been resolved, Ms Taylor may still be working for Classic Sports today.
[42] Subsection 392(2) of the Act also directs me to specific matters which are listed in paragraphs 392(2)(a) to (g). In relation to paragraph (a) nothing was put that an order for compensation would affect the viability of Classic Sports’ enterprise. For the purposes of paragraph (b) I note that Ms Taylor had only worked for Classic Sports for around 12 months. For paragraph (c) which refers to the remuneration Ms Taylor would have earned if she had not been dismissed, this requires some speculation, but I consider that Ms Taylor would still be working in the new role at a similar salary to her salary at the time of dismissal had she been given the opportunity to do so. As to mitigation which is mentioned in section 392(2)(d) of the Act, Ms Taylor has been trying to find other work but has been unsuccessful. Regarding paragraphs (e) and (f), Ms Taylor has not earned remuneration since the dismissal and is unlikely to have any earnings from the time of any order for compensation and the payment of the compensation.
[43] The well-established approach3 to the assessment of the quantum of compensation under s 392 of the Act is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.4
[44] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
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.
[45] Applying this formula, the remuneration lost to the time of this decision was 11 weeks’ pay or $21,153.88 and superannuation at 11.5% of $2,432.70 giving a total of $23,586.58. There is no reason to make a reduction in the amount for contingencies. Taxation matters can be dealt with in accordance with the relevant taxation laws. No reduction is necessary on account of misconduct by Ms Taylor under s 292(3), as there was no misconduct.
Conclusion
[46] For the reasons outlined, I consider that Ms Taylor was unfairly dismissed and a payment of $23,586.58 from Classic Sports to Ms Taylor as compensation in lieu of reinstatement is an appropriate remedy.
[47] An order requiring payment in this amount within 21 days of this decision will issue separately.”
Taylor v Classic Sports Industries Pty Ltd [2025] FWC 385 delivered 17 February 2025 per Slevin DP
Conclusion
[46] For the reasons outlined, I consider that Ms Taylor was unfairly dismissed and a payment of $23,586.58 from Classic Sports to Ms Taylor as compensation in lieu of reinstatement is an appropriate remedy.
[47] An order requiring payment in this amount within 21 days of this decision will issue separately.”
Taylor v Classic Sports Industries Pty Ltd [2025] FWC 385 delivered 17 February 2025 per Slevin DP