This extract from a Fair Work Commission case provides a summary of the legal principles which define a genuine redundancy which amongst other implications can constitute a complete defence to an unfair dismissal claim.
“Consideration
[27] Under s.385(d) of the Act a person is not unfairly dismissed if the dismissal was a genuine redundancy. The term ‘genuine redundancy’ is defined in s.389 of the Act:
389 Meaning of genuine redundancy
(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.
[28] Accordingly, there are three relevant matters for consideration in determining whether the Applicant’s dismissal was a case of genuine redundancy, namely:
- Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise?
- Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?
- Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise?
[29] The Explanatory Memorandum to the Fair Work Bill 2008 provides that a redundancy may be genuine where, for example, the employer only needs three people to do a particular task or duty instead of five, or where the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.1
[30] Further, the process for selecting an individual employee for redundancy is not a relevant question as to whether the redundancy is a genuine redundancy.2
Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise?
[31] As noted above, in considering the question of whether an employer “no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise”, it is well established that the test can be met when job functions are retained but are redistributed.
[32] An employee’s job may be genuinely made redundant when the employee’s duties, or aspects of them, are still being performed by other employees.3 The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.4
[33] The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.5 The operational circumstances of a business which may result in a redundancy are matters within the direct knowledge of the employer. The evidentiary onus rests on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.6
[34] In Ulan Coal Mines Limited v Henry Jon Howarth and others7, the Full Bench said:
“[17] It is noted that the reference in the statutory expression is to a person’s ‘job’ no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee’ (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant …’ (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the ‘job’ of that employee no longer exists.’”
[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
‘When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.’”
[35] In Adams v Blamey Community Group8, the Full Bench, in relation to s.389(1)(a), said:
“it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision – that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been – then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.” (citations omitted)
[36] Having considered the evidence and submissions, I am satisfied and find that the Applicant’s role with a salary of $110,000 no longer exists and has not been replaced.
[37] There were clear changes in the operational requirements, that being the financial position of the Club. It was reasonable and appropriate for the Club to reduce its costs, particularly to avoid the risk of trading while insolvent.
Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?
[38] It is not in dispute that Fitness Industry Award 2020 (Award) applied to the Applicant’s employment.
[39] Clause 27 of the Award deals with consultation as follows:
- Consultation about major workplace change
27.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
27.2 For the purposes of the discussion under clause 27.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
27.3 Clause 27.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
27.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 27.1(b).
27.5 In clause 27 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
27.6 Where this award makes provision for alteration of any of the matters defined at clause 27.5, such alteration is taken not to have significant effect.
[40] In this case, I am satisfied that the Respondent met its obligations to consult. It gave written notice to the Applicant on 25 May 2025 in addition to the other correspondence outlined above. Further, the Treasurer met with him to discuss the situation. Overall, I am satisfied that the Club took reasonable steps to consult with the Applicant, including to explain its financial position.
[41] As a result, I am satisfied that the consultation obligations were met.
Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise?
[42] As set out earlier, s.389(2) provides that a person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.
[43] For the purposes of section 389(2) of the Act, the Commission must consider whether 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. There must be an appropriate evidentiary basis for such a finding.9 The word ‘redeployed’ in section 389(2) of the Act should be given its ordinary and natural meaning, which is to ‘transfer to another job, task or function’.10
[44] The Applicant was offered redeployment involving a reduced salary which he declined. There was no evidence of other alternative positions to which the Applicant could have been redeployed.
Conclusion
[45] For the above reasons, I am satisfied that the Applicant’s employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act.
[46] As a result, the Applicant is not an employee who is protected from unfair dismissal and her application under s.394 of the Act must be dismissed. An order dismissing the application will be issued with this decision.”
Igor Demin v Tuggeranong Vikings Swim Club Inc [2025] FWC 3351 delivered 10 November 2025 per Dean DP