Appeal by Ventyx Pty Ltd T/A Ventyx an ABB Company - [2014] FWCFB 2143

1

Fair Work Act 2009 
s.604 - Appeal of decisions

Ventyx Pty Ltd
v
Mr Paul Murray
(C2014/3132)

SENIOR DEPUTY PRESIDENT RICHARDS
DEPUTY PRESIDENT SAMS
COMMISSIONER SIMPSON

BRISBANE, 29 APRIL 2014

Summary: Appeal against decision [2014] FWC 516 and the orders of Deputy President 
Gooley in matter number U2013/2397 - appeal raises questions about the proper construction 
of s.389 - meaning of genuine redundancy - s.389(1)(b) of the Fair Work Act - for the 
purposes of s.389(2) - failure to make the requisite finding etc - decision and orders quashed -
application under s.394 dismissed on rehearing.

[1] Mr Paul Murray was dismissed from his employment with Ventyx Pty Ltd T/A 
Ventyx an ABB Company (“Ventyx”) on grounds of redundancy, after serving a period of 
employment that commenced in January 2012 and concluded on 2 July 2013 - a period of 
some 16 months.  

[2] Mr Murray subsequently lodged an application for an unfair dismissal remedy 
pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”).

[3] By her decision [[2014] FWC 516] and order [PR547199] of 30 January 2014 Deputy 
President Gooley rejected Ventyx’s contention, as it was, that Mr Murray’s dismissal was a 
case of genuine redundancy (within the meaning of ss.385(d) and 389 of the Act). 

[4] At the time of his termination, the Applicant was paid $14,290.75 (less taxation) in 
lieu of notice (which Ventyx claimed was four weeks in excess of his statutory obligation) 
and another $9,527.17 (less taxation) in severance or redundancy pay. The Deputy President 
subsequently ordered for purposes of remedy that Mr Murray be paid an (additional) amount 
of $64,650 (less taxation). 

[5] A stay order was sought in relation to the appeal, and that application was heard on 24 
February 2014. The sum ordered to be paid to Mr Murray was subject to an order, and the 
monies were placed in an interest bearing account, pending the outcome of the appeal process.

[6] Permission to appear under s.596 of the Act was extended to both parties’ legal 
representatives. 

[2014] FWCFB 2143

DECISION


E AUSTRALIA FairWork Commission




 



[2014] FWCFB 2143

2

The appeal

[7] Ventyx has appealed the Deputy President’s decision that there was no genuine 
redundancy and that Mr Murray had been unfairly dismissed, along with the Deputy 
President’s orders on remedy. 

[8] Before turning to the particular issues raised in the appeal we make some general 
observations about the nature of an appeal from an unfair dismissal decision. The relevant 
principles in this regard were set out in the recent decision by the Full Bench of the 
Commission in Technical and Further Education Commission T/A TAFE NSW v L. Pykett
[2014] FWCFB 714 (“Re: Pykett”):    

[4] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the 
Commission’s powers on appeal are only exercisable if there is error on the part of the 
primary decision maker. There is no right to appeal, rather an appeal may only be 
made with the permission of the Commission. 

[5] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the 
FW Act. Section 400 (1) provides that permission to appeal must not be granted from 
a decision made under that part unless the Commission considers that it is in the public 
interest to do so. Further, in such matters appeals on a question of fact may only be 
made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). 
In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with 
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a 
stringent one’. The Commission must not grant permission to appeal unless it 
considers that it is ‘in the public interest to do so’. 

[6] The task of assessing whether the public interest test is met is a discretionary one 
involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a 
Full Bench of the Commission identified some of the considerations that may attract 
the public interest: 

“... the public interest might be attracted where a matter raises issue of 
importance and general application, or where there is a diversity of decisions at 
first instance so that guidance from an appellate court is required, or where the 
decision at first instance manifests an injustice, or the result is counter intuitive 
or that the legal principles applied appear disharmonious when compared with 
other recent decisions dealing with similar matters. [citations removed]

[9] We adopt the approach of the Full Bench as cited.

[10] The appeal focuses on three aspects of the Deputy President’s decisions and order: 

(i) the finding that Mr Murray’s dismissal was not a ‘genuine redundancy’; 

(ii) the finding that the Mr Murray was unfairly dismissed; and

(ii) the compensation order of $64,650 (less taxation). 








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[11] We are satisfied that it is in the public interest to grant permission to appeal. The 
appeal raises questions about the proper construction of s.389(1) of the Act. 

[12] We now turn to deal with each of the issues. In so doing we proceed on the basis that 
our examination of the decision under appeal incorporates the various grounds of appeal as set 
out in the original notice of appeal of 20 February 2014 and as otherwise supplemented by the 
written submissions of 11 March 2014.

[13] We add that for the purposes of proceeding we will initially deal with the argument on 
jurisdiction under s.389 of the Act, and then turn to consider the appeal grounds in relation to 
the substantive or merits hearing. 

Section 389(1) of the Act - jurisdiction

[14] Section 385(d) of the FW Act provides that a person has been ‘unfairly dismissed’ if, 
among other things, the Commission is satisfied that the dismissal was not a case of ‘genuine 
redundancy’. The expression ‘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.

Background

[15] Mr Murray had performed duties as a technical project manager (TPM) for Ventyx. In 
this capacity he provided technical advice and project management services in relation to 
software development and commissioning projects. It was accepted that TPM’s can move 
between projects and are not dedicated to one specific project.

[16] Ventyx at any one time can be engaged on a number of projects. It also has offices in 
some 20 countries.

[17] In June 2012 Mr Murray was informed that the project on which he was working 
would be cancelled. Thereafter he worked on different projects.








[2014] FWCFB 2143

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[18] From May 2013 Mr Murray was placed “on the bench”. This appears to be a nominal 
position in which employees are placed when they are between projects and are not billing 
hours. Employees who are on the bench appeared to utilise their time in completing training 
courses. Mr Murray completed some short term work but other than that it appears as though 
it was established that “his schedule would be completely free for the next six months”.

[19] It appears that Ventyx undertook a review of its global business which had not been 
performing to expectations. Eventually some 100 employees globally were made redundant. 
Nine positions were made redundant in the Asia-Pacific region (Australia) consulting team. It 
was unchallenged that no new employees have been employed in the Asia-Pacific consulting 
team in the six months since the redundancies.  

[20] The Deputy President found that the requirements of s.389(1)(a) of the Act were made 
out:

I accept the evidence of Ventyx that it was no longer prepared to employ surplus 
employees and it needed to reduce its head count. It therefore made a decision to 
review employees who were on the bench and unfortunately for Mr Murray he was on 
the bench at that time and there was no work in the pipeline for him. I therefore find 
that Mr Murray's position was redundant.1

[21] The Deputy President then turned her mind to whether the requirements of s.389(1)(b) 
of the Act had been made out.

[22] There seems to be no argument that the consultation clause in the Professional 
Employees Award 2010 (“the award”) applied to Mr Murray’s employment, and that Ventyx 
was obliged to conduct itself in the manner there set out. The relevant provision is as follows:

9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes 
in production, program, organisation, structure or technology that are likely to 
have significant effects on employees, the employer must notify the employees 
who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in 
the composition, operation or size of the employer’s workforce or in the skills 
required; the elimination or diminution of job opportunities, promotion 
opportunities or job tenure; the alteration of hours of work; the need for 
retraining or transfer of employees to other work or locations; and the 
restructuring of jobs. Provided that where this award makes provision for 
alteration of any of these matters an alteration is deemed not to have significant 
effect.

(b) Employer to discuss change

                                               
1 [2014] FWC 516 at [19].








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(i) The employer must discuss with the employees affected and their 
representatives, if any, the introduction of the changes referred to in 
clause 9.1(a), the effects the changes are likely to have on employees and 
measures to avert or mitigate the adverse effects of such changes on employees 
and must give prompt consideration to matters raised by the employees and/or 
their representatives in relation to the changes. 

(ii) The discussions must commence as early as practicable after a definite 
decision has been made by the employer to make the changes referred to in 
clause 9.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing 
to the employees concerned and their representatives, if any, all relevant 
information about the changes including the nature of the changes proposed, 
the expected effects of the changes on employees and any other matters likely 
to affect employees provided that no employer is required to disclose 
confidential information the disclosure of which would be contrary to the 
employer’s interests.

Deputy President’s decision

[23] The Deputy President considered the following circumstances:

By May 2013 Ventyx was known to be underperforming as a business and downsizing 
was proposed as a means of addressing that problem and that “they needed to look at 
people who were on the bench”;

A global plan was discussed at a meeting on 3 June 2013 and “[a]t that meeting it was 
proposed that they would reduce the number of staff who were on the bench”;

Mr Murray’s name was on a list at that time (as he was on the bench), though Mr 
Weerasekera (Mr Murray’s manager) had attempted to find work on a project for Mr 
Murray but had been unsuccessful”;

On 11 June 2013, managers were informed there was an imperative to reduce staff 
numbers and to set about identifying staff who had “limited prospects of work”;  

The CEO approved the “right sizing” and this decision was made known by an email 
on 12 June 2013;

A request was made to provide confirmation of the names of persons to be made 
redundant by 14 June 2013;

The names of those to be made redundant were not finalised by 23 June 2013;

Mr Murray’s name had been on the list of those who may be made redundant since 3 
June 2013;

Mr Murray was informed of his redundancy on 1 July 2013;








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Ventyx held that it did not inform employees likely to be affected by the decision until 
1 July 2013 because of security concerns (for its own systems and that of its client 
businesses), amongst other matters;

Mr Weerasekera and Ms Shrubsole (the Senior Human Resources Advisor) met with 
Mr Murray on 1 July 2013;

Mr Murray “was told that if there are any mitigating circumstances or other relevant 
information that [they] had not considered to let them know as soon as possible;”

Mr Murray was given a redundancy pack, which contained correspondence stating that 
he would be retrenched the following day - 2 July 2013; and

At a further meeting on 2 July 2013, Mr Murray asked questions and expressed 
interest in a number of positions.

Findings on jurisdiction

[24] The Deputy President went on to make a series of findings and to raise a series of 
concerns in regard to the consultation obligation under the modern award. There is some 
interconnection between these findings and concerns. We consider that it is convenient to deal 
with each of the Deputy President’s findings on jurisdiction discretely. As there are a series of 
findings that go to the proper construction of s.389 of the Act, we think it is important in the 
public interest to approach the appeal in some detail in this respect. 

First jurisdictional issue

[25] The Deputy President found as follows:

[35] I do not accept that because some of the employees who were likely to be affected 
were not covered by the Award, Ventyx was absolved of its obligation to discuss the 
proposed changes with employees who were covered by the Award. 

[36] I do not accept the submissions of Ventyx that it was only practicable to discuss 
the decision once the individual had been identified and security issues could be 
addressed. While I accept that there may have been some security concerns, Mr 
Erasmus accepted he did not have any security concerns about Mr Murray. I do not 
accept that the only way Ventyx could have managed its security concerns was to not 
advise employees of the decision until all employees could be notified and have their 
computer access shut down. 

[26] The award obligation at clause 9.1(b)(ii) provides as follows in relation to the 
notification of change etc:

The discussions must commence as early as practicable after a definite decision has 
been made by the employer to make the changes referred to in clause 9.1(a). [Our 
emphasis]

[27] The inclusion of the word “practicable” means the relevant discussions must occur 
with expedition, but subject to reasonable practical considerations, or as early as might 






http://www.fwc.gov.au/documents/modern_awards/award/ma000065/ma000065-10.htm#P316_29578


[2014] FWCFB 2143

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reasonably be feasible. Such a definitional approach seems to be commonly accepted on the 
basis of the commentary in the Words and Phrases Legally Defined, 4th Edition (Edt. David 
Hay) 2013.

[28] We note that the The Oxford English Dictionary (1978 Re-Print) provides the 
following definition of “practicable”:

Capable of being put into practice, carried out in action, effected, accomplished, or 
done; feasible

[29] Further, The Macquarie Dictionary Online Sixth Edition (published in October 2013)
similarly defined practicable as meaning:

Capable of being put into practice, done, or effected, especially with the available 
means or with reason or prudence; feasible.

[30] We see the kinds of issues that informed the conduct of Ventyx as comprising such 
practical considerations. There was no attack on the genuineness of Ventyx’s claims in this 
regard, or concerns that they were inherently unreasonable considerations.  

[31] We do not discern in the evidence before the Deputy President, therefore, any grounds 
on which she could have rejected claims put to her by the witnesses about the range of matters 
it was required to manage prior to notifying the affected employees of the major change and 
its likely significant effect upon them. 

[32] The evidence was unchallenged.

[33] For example, the evidence before the Deputy President was that Ventyx had 
contractual obligations to ensure the integrity and confidentiality of its client data. It gave 
effect to this contractual obligation by ensuring that those employees who were likely to be 
affected by a redundancy were off-line at the time that they were so informed. Mr Storer, the 
Senior Vice President Global Consulting, gave the following evidence:

Due to the nature of the business that the Respondent operates, in terms of the level of 
access to customer darter and importance of protecting the integrity of the darter, it 
was crucial that the staff involved in the process maintain absolute confidentiality
about the process. This was also why the notification to all staff had to occur at the 
same time to avoid the risk of damage to the Respondent's reputation if a staff member 
of his position had been, or was likely to be made redundant misappropriated customer 
data. 

[34] The Deputy President was not in a position to reject (or to not accept) the evidence 
(more of which is set out below in rehearing) without providing reasonable grounds for so 
doing so. But she did not do so.

[35] It is similarly so in respect of the approach of Ventyx in respect of how it 
communicated and managed the change process across its global business, and in respect of 
identifying those who were subject to award arrangements and those who were not.








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[36] It appears to us that there are no evidence-derived reasons for rejecting Ventyx’s 
otherwise unchallenged claims as to the factors which affected the practicability of the time at 
which it commenced discussions about major change.

[37] Employers may face various exigencies which will affect the practicability of the 
timing of the commencement of discussions with employees. Some of those circumstances 
are set out above. There will be others (and especially so for publicly listed companies and 
remote construction projects for example). 

[38] We think the award provision to ensure that discussions occur as early as practicable is 
intended to apply to circumstances such as that which faced Ventyx, principally security 
concerns and the need to manage a global review process on a common approach.

[39] Again, without having evidence-based reasons to reject Ventyx’s explanation as to 
why it proceeded in the manner it did to communicate the redundancies, the Deputy President 
fell into error. The Deputy President also (or in the alternative) fell into error in not having 
regard to the language of the award provision for the purposes of s.389(1)(b) of the Act (in so 
far as she did not consider whether Ventyx acted as early as “practicable”).

Second jurisdictional issue

[40] Having decided, erroneously as we have found, that Ventyx had not acted as soon as it 
practicably might have, the Deputy President went on to find that:

As such there was no opportunity for Mr Murray to change the decision made by 
Ventyx either to downsize the consultancy business or to make him redundant.2 [Our 
emphasis]

[41] This repeated the Deputy President’s earlier finding that:

It is clear that the Award obliges the employer to do more than tell the affected 
employees what it intends doing; it must give the employee information about what is 
decided and give the employees an opportunity to put forward alternatives to avert or 
mitigate the adverse impact of the decision and give consideration to those proposals. 
This includes providing the employees with an opportunity to change the employer’s 
decision.3 [Our emphasis]

[42] The Deputy President appears to have evaluated the conduct of Ventyx for purposes of 
s.389(1)(b) of the Act against the standard that an employee must be given an opportunity to 
change the decision made by the employer.

[43] This was a point made on appeal by the Appellant.

[44] The employer was required to give effect to its obligations under the award provisions 
set out above at clause 9.1(b)(i) of the Award:

(b) Employer to discuss change

                                               
2 [2014] FWC 516 at [38].
3 [2014] FWC 516 at [33].








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(i) The employer must discuss with the employees affected and their 
representatives, if any, the introduction of the changes referred to in 
clause 9.1(a), the effects the changes are likely to have on employees and 
measures to avert or mitigate the adverse effects of such changes on employees 
and must give prompt consideration to matters raised by the employees and/or 
their representatives in relation to the changes.

[45] Clause 9.1(b)(i) of the award does not require an employer to provide an opportunity 
for the employee to change the definite decision it has made. The award obligation, instead, 
requires the employer to discuss certain prescribed matters (the introduction of the changes, 
the likely effects of the changes, and to consider measures to mitigate the adverse effects of 
such changes).

[46] So far as the Deputy President used language that re-formulated the obligation under 
clause 9.1(b)(i) of the award (to mean the employer was obliged to give an employee an 
opportunity to change its decision), she fell into error. 

[47] We note that Barnes J of the Federal Circuit Court in Ingersole v Castle Hill Country 
Club Limited [2014] FCCA 450 recently, and relevantly, commented in much the same 
manner about the proper construction of the award obligation:

145. It was also submitted for the Applicant that in substance cl.8 was an "ancient" 
clause that should have been construed as including a duty to consult to avert future 
changes (not merely the prejudicial effects of a decision that had already been made). 
Insofar as such contention was initially put on the basis that Judge Raphael was clearly 
wrong in his interpretation of the part of the clause considered in Qantas that was
similar to cl.8.2(a) of the Award, this argument was not maintained. In any event, 
consistent with the principles of construction considered in Kucks, on the clear 
wording of cl. 8 of the Award it is apparent that no consultation is required until a 
definite decision has been made and then the consultation envisaged is as set out in 
cl.8.2(a), in relation to the introduction and likely effects of the changes decided upon 
and measures "to avert or mitigate the adverse effects of such changes on employees", 
not to avert (or avoid) the changes themselves.

[...]

149. Insofar as the Applicant maintains the contention that the construction of cl.8 of 
the Award is in doubt, having regard to the particular clause in question and the 
general principles of construction considered in Qantas and cases referred to therein, I 
am satisfied that the wording of cl.8 of the Award makes it clear that the obligation to 
consult does not arise unless and until a definite decision has been made by the 
employer. In other words, the obligation under cl.8 is not an obligation to consult on 
mere proposals or possible major changes which, if adopted, would have the effect of 
introducing major changes likely to have significant effects on employees (such as 
termination of employment).

[...] 








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151. Even though in one sense a definite decision to introduce a change consisting of a 
termination of employment would be a "fait accompli" before the mandated 
discussions were to commence (Municipal Officers Association at [3 9]), the 
rationale and scope for a requirement of consultation in such a case is clear on the 
language of cl. 8 of the Award, in particular cl.8.2(a). It extends to the introduction of 
the changes about which there has been a definite decision, the effects such changes 
are likely to have on employees and measures to avert or mitigate the adverse effects 
on employees of such changes. I am satisfied that the obligation on the Club under the 
Award was to notify, consult and discuss in relation to the results or effects of changes 
that the Club had made a definite decision to introduce. [Our emphasis]

Third jurisdictional issue

[48] The Deputy President continued on to find that the requirement to discuss the change 
with the likely affected employees was not a discussion as such (for the purposes of 
s.389(1)(b) of the Act) but an announcement of Ventyx’s intention to make the change and to 
initiate the various redundancies:

[30] [W]hat occurred on 1 and 2 July 2013 was not discussion about the proposed 
change. Mr Erasmus was clear, once someone’s name was on the approved list, there 
was nothing they could do to have their name taken off the list. Mr Weerasekera 
agreed that there was nothing Mr Murray could have said to him that meant he could 
have taken him off the list. Mr Storer said the only circumstances in which a person’s 
name could come off the list was if “some new work that we had previously been 
unaware of had been contracted and we had demand for their skills.” 

[31] It is clear from the script that what was to be discussed was “the process from this 
point.” Further, it is clear that Ventyx only considered itself obliged to notify Mr 
Murray of “the business change and the reasons for [his] position becoming 
redundant.” Mr Weerasekera told Mr Murray that “there is no work and we are 
changing the structure of the group and there won’t be tech PM roles.” 

[...]

[34] It is clear that what took place on 1 July and 2 July 2013 was not a discussion as 
required by the Award as Mr Murray raised a number of issues including alternative 
positions. These matters were not responded to until after Mr Murray’s employment 
had been terminated. [Our emphasis]

[49] The Deputy President’s finding in relation to s.389(1)(b) of the Act is central to the 
jurisdictional issue she was required to determine. Her finding in that regard was that the 
discussion conducted on 1 July 2013 with Mr Murray was not a discussion in effect, but 
rather an announcement of the decision to make his (Mr Murray’s) position redundant.

[50] Some discussion of the structure of the award consultation clause is necessary as a 
preliminary to reviewing the Deputy President’s finding above.

[51] We think it is a reasonable proposition on the face of the plain language of the award 
clause that it is premised upon the discussions occurring prior to or in advance of the 








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implementation of the redundancies as such, but after the definite decision has been made. For 
example, clause 9.1(a)(i) provides:

Where an employer has made a definite decision to introduce major changes in 
production, program, organisation, structure or technology that are likely to have 
significant effects on employees, the employer must notify the employees who may be 
affected by the proposed changes and their representatives, if any.

[52] Similarly, clause 9.1(b)(iii) also provides as follows: 

For the purposes of such discussion, the employer must provide in writing to the 
employees concerned and their representatives, if any, all relevant information about 
the changes including the nature of the changes proposed, the expected effects of the 
changes on employees [...]. [Our emphasis]

[53] Here the award clause makes it clear that the discussions must be about the “expected
effects” on employees (who may be affected) of the proposed changes. 

[54] It went unchallenged, and was accepted by the Deputy President, that Mr Murray was 
not made redundant on the day on which he was notified of the changes to Ventyx’s staffing 
structure or profile. On the evidence, Ventyx read to Mr Murray from a prepared script used 
by managers. Apart from explaining the cause of the changes the script as read to Mr Murray 
was a follows:

At this time, although your Technical Project Manager role has been involved in a 
variety of tasks, we haven't been able to well utilise the role or worked to the level 
required. Looking forward, there is little forecast for the next 3 months and the 
pipeline of work for the next six months is not established.

For these reasons, the organisation has determined that your role is redundant. 

The purpose of this meeting is to notify you of this change and talk through with you, 
the process from this point. 

This is also a time to ask questions and for more information. We will go through the 
redundancy process and talk about the next steps.

We have reviewed all vacancies in the business and unfortunately no suitable 
alternative positions are available at this time.

If you feel that there are any mitigating circumstances or other relevant information, 
that we have not considered, please let me know as quickly as possible.  [Our 
emphasis]

[55] The information pack proceeded to refer to the letter of redundancy, which was to take 
effect on 2 July 2013.

[56] In respect of that letter Mr Murray was informed of the reasons for the changes:








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We will meet/talk again tomorrow- this will give you the chance to consider any other 
issues so that we can answer any questions, respond to any concerns - also provide us 
with any of the information that may be relevant to you. [Our emphasis]

[57] Mr Murray was further informed that:

I would like to discuss the next steps from here. You don't need to go back to work 
after this meeting – you'll go home.

We will just check the items that you have to be returned to the business. 

I'll see you/talk to you tomorrow to answer any questions. I have arranged a time to 
you [to meet]. This will be another chance for questions or comments that may have 
occurred to overnight. We can also finalise any documentation, return the items of
company property that you have.

I think we have discussed everything we need to at this stage for today. We will talk 
again tomorrow. (sic)

[58] At the same time as the above matters were communicated, Mr Murray was given a 
letter of redundancy dated 1 July 2013. That letter of redundancy read in part as follows:

Following discussions today, this letter confirms that as a result of an organisational 
review, the Company has decided to make your position redundant. Accordingly, you 
will be retrenched effective 2 July 2013.

We have conducted a review of other opportunities in an endeavour to redeploy, 
second or point you to another similar role. Unfortunately no suitable opportunities 
currently exist.

This letter will serve as a formal notice of your position’s redundancy. You will be 
paid in lieu of your notice period, together with redundancy pay and any accrued leave 
entitlements. Payment will be processed within seven days.

[...]

May we take this opportunity to express our appreciation for the contribution you have 
made and which you every success in your future endeavours.

[59] It appears to us that the Company had reached a high degree of confidence in relation 
to the course on which it had embarked. This is to be expected where an employer has made a 
“definite decision” to introduce change. Indeed, the award clause (at 9.1(a) and 9.1(b)) itself 
also anticipates the consequences of the change arising from the “definite decision” by 
referring to the likelihood of its effects on employees. The evidence of the witnesses for 
Ventyx reasonably reflects this degree of certainty.

[60] Notwithstanding this, however, the Company expressly left open the opportunity for 
the Applicant to put other information to it that it had not considered to mitigate the effects of 
its decision on the employees affected (including Mr Murray).








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[61] The Company may well have had the view that it was unlikely that the situation or the 
circumstances would change as a consequence of this process. The Deputy President found as 
such. But equally so, there was no evidence before the Deputy President that the opportunity 
provided by the Company to consider any further information the following day from Mr 
Murray was not genuine or that any information or views put forward by Mr Murray on 2 July 
2013 would be dismissed or discounted as a matter of automaticity.

[62] We think that absent evidence that went to the genuineness of the opportunity 
provided to Mr Murray to consider the circumstances overnight and provide Ventyx with any 
additional information it may have overlooked or not considered, the Deputy President’s 
finding that the process was not compliant with the award clause was not capable of being 
asserted.

Fourth jurisdictional issue

[63] The Deputy President’s findings, however, went further than this. In effect, the Deputy 
President, at paragraph 34 of her decision (cited above) found that Ventyx failed to:

give prompt consideration to matters raised by the employees and/or their 
representatives in relation to the changes.

[64] The reason the Deputy President found as such was that in the second interview (2 
July 2013) Mr Murray expressed an interest in the availability of at least three positions in 
Ventyx’s office in Atlanta, USA. The positions were identified from a list of vacant positions 
he had been provided Ms Shrubsole. Ms Shrubsole indicated that she did not want to give the 
impression to Mr Murray that Ventyx could “just relocate [him] to Atlanta as this was a 
business decision with appropriate expense approvals required.” It appears from the evidence 
that Mr Murray sought information about the positions or how to look into them further.

[65] It would not be for some days following the Applicant's redundancy that Ms Shrubsole 
found herself with time to commence investigating the positions that Mr Murray had 
expressed interest in, but that investigation was cut short once the application for relief under 
s.394 of the Act was received. 

[66] In the context of this discussion, the obligation that falls on the employer under clause 
9.1(b)(i) of the award involves two mandatory steps. The employer must:

1. “discuss” with the employee(s) measures to avert or mitigate the effects of the 
change; and
2. “give prompt consideration to matters raised [...] in relation to the changes.

[67] The requirement to give “prompt consideration” reasonably arises from the potential 
for the matters as raised by the employee(s) (or their representatives) to avert or mitigate the 
effects of the changes following from the definite decision to implement change. That aside, 
the matters to which the employer must give consideration are matters that are raised by an 
employee in relation to the changes which are the subject of the definite decision.

[68] The responsibility to consider the Applicant’s expression of interest in the Atlanta 
positions appears to have fallen upon Ms Shrubsole, in so far as she was the only person who 
gave evidence about the manner in which the matter was considered or otherwise dealt with.








[2014] FWCFB 2143

14

The onus to give evidence (as it may be) of the promptness of the response to any matters 
raised by an employee (for the purposes of clause 9.1(b)(i) of the award) rests with the 
employer.  

[69] On Ms Shrubsole’s evidence, perhaps for no reason other than her workload at the 
time, she claimed that she did not take steps to action in relation to considering the positions 
in Atlanta cited by Mr Murray until well after Mr Murray’s redundancy had taken effect. Ms 
Shrubsole said the matter had “completely slipped [her] mind”. 

[70] Because of this, Ventyx therefore cannot be said to have given the matters raised by 
the Applicant “prompt consideration” as the award clause obligates it to do.

[71] This is not to say that consideration was not given to other matters raised by Mr 
Murray: quite detailed correspondence was directed to Mr Murray on 5 July 2014 to this 
effect that demonstrates that Ventyx had considered those matters as it was obligated to do.
And usually it will be the case that a response to an employee about the matter(s) raised will 
be the means by which an employer will demonstrate that consideration has been given to the 
matter(s) as raised (though there may be other sources of evidence, of course).

[72] But there is no evidence of Ventyx having considered the outstanding matter of the 
Atlanta positions as raised by Mr Murray. This matter may reasonably be taken to be a matter 
raised in relation to the changes which were the subject of definite decision taken by Ventyx.
It appears from the evidence of Ms Shrubsole that she was unable to give consideration to the 
outstanding matter raised by the Applicant “promptly”. Regardless of whether or not the 
matter as raised had merit or would have changed the outcome in any substantive way, the 
award warranted Ventyx giving the matter prompt consideration (and being able to 
demonstrate that it did so).

[73] Though for somewhat different reasons than the Deputy President, we therefore find 
that the Deputy President was correct in concluding that Ventyx failed to meet the 
requirements of clause 9.1(b)(i) of the award to:

give prompt consideration to matters raised by the employees and/or their 
representatives in relation to the changes.

[74] We note that where an employer elects to provide a limited period within which to 
discuss matters consequential of a decision to make a definite change in its business, 
difficulties may arise in relation to an award-derived obligation to “give prompt consideration 
to matters raised by the employees and/or their representatives in relation to the changes”. 
That is very much the issue that arose in this matter.

Fifth jurisdictional issue

[75] The Deputy President continued on to make a finding in relation to whether it would 
have been reasonable in the circumstances for Ventyx to have redeployed Mr Murray in its 
enterprise or an associated entity (for the purposes of s.389(2) of the Act). Given her finding 
in relation to s.389(1)(b) of the Act, it was not necessary for the Deputy President to do so for 
the purposes of determining the jurisdictional question. But she proceeded to do so for reason 
that:








[2014] FWCFB 2143

15

“given [my] decision in this matter, I will address this issue because it is relevant to 
the question of how long Mr Murray would have remained in employment.”4

[76] In so far as the Deputy President made findings in relation to s.389(2) of the Act (even 
if for a purpose other than for establishing the jurisdictional prerequisites of the application), 
we are obligated to consider those findings.

[77] The Appellant contends that the Deputy President fell into error in her finding in so far 
as she misconstrued the jurisdictional focus in s.389(2) of the Act. We set out the relevant 
elements of the Deputy President’s decision as follows:

[41] Mr Weerasekera gave evidence of his attempts to find work for Mr Murray after 
the SPARQ project was cancelled. He was successful in finding Mr Murray work up 
until June 2013. The nature of Ventyx’s business model was that it employed 
permanent employees to work in a project based business. It is therefore inevitable that 
if a project comes to an end the employees will be allocated to another project if one is 
available. It is clear that after the decision, Mr Weerasekera looked for work for Mr 
Murray in Australia. Mr Weerasekera did not look for jobs for Mr Murray outside of 
Australia despite the fact that during his employment with Ventyx he had performed 
work outside of Australia. There was no evidence that Mr Weerasekera or anyone else 
looked for lower paid positions for Mr Murray. 

[42] Mr Murray was provided on 1 July 2013 with a list of job vacancies. There was 
conflicting evidence about the list that was provided to Mr Murray. I accept the 
evidence of Mr Murray that the list he was provided was the list that is exhibited to his 
witness statement. For whatever reason that list did not indicate that certain jobs on the 
list were in Australia. As a consequence Mr Murray did not express an interest in those 
positions. Mr Weerasekera reviewed the Australian jobs and determined that they were 
not suitable. 

[43] It is clear from the evidence that Ventyx did not consider that it was obliged to 
consider if any of the other positions were suitable for Mr Murray. It is also clear that 
the list was provided to Mr Murray on the basis that he would be required to apply for 
the positions. It is also clear that despite expressing interest in some positions no 
action to investigate these positions was taken by Ventyx until after his employment 
was terminated. While Mr Weerasekera gave evidence that he had subsequently seen 
the job descriptions, he also gave evidence that the job descriptions were not available 
to be sent to Mr Murray. He did not determine if those positions were suitable for Mr 
Murray nor did he provide any feedback to Mr Storer or Mr Schoeman that Mr Murray 
was interested in these positions as an alternative to redundancy. 

[44] It is also clear that Ventyx did not consider offering Mr Murray a lesser skilled 
job at a lower rate of pay despite Ventyx’s own redundancy policy stating that 
alternative positions which include a position which is less comparable because it 
might be at a lower salary or level, require a different skill set or a significantly 
different location, could be offered to employees. 

                                               
4 [2014] FWC 516 at [40].








[2014] FWCFB 2143

16

[45] As the list of jobs was provided to Mr Murray, I can only assume that Ventyx
considered at least some of the jobs on the list were suitable for Mr Murray, otherwise 
why provide the list at all. 

[46] Ventyx did not consider redeployment to an overseas vacancy as reasonable in all 
the circumstances because of the costs of relocation and because these positions could 
be filled by local people. Ventyx did not discuss with Mr Murray whether he would 
have accepted redeployment to an overseas posting without the payment of relocation 
costs. If the positions were only available to local employees, one can only ask why 
were they included on a list provided to Mr Murray. 

[47] Ventyx submitted that redeployment was not reasonable because there had been a 
global downturn in their business. However despite that downturn it had vacant 
positions. 

[48] Ventyx submitted that is does not usually relocate employees overseas unless 
there is a business reason to do so and there was no business reason to do so. The same 
might be said about any relocation or reassignment. However the Fair Work Act 2009
requires redeployment if it is reasonable in all the circumstances and unlike the 
situation described by Senior Deputy President Richards in Roy v SNC-Lavalin 
Australia Pty Ltd, here the Respondent did have Australian employees working 
overseas and provided Mr Murray with information about overseas vacancies. Further 
there was no evidence to support the submission that each international office of the 
Respondent generally recruits locally for advertised positions (or has control of the 
recruitment process). Mr Storer’s evidence was that “when considering a potential 
relocation, the main consideration would be whether the staff member could do the job 
and whether they were the only person who could do the job.” Even accepting this 
limitation, which I do not, no steps were taken to see if Mr Murray could be 
redeployed to these positions prior to his dismissal. 

[49] While Mr Storer said there were local people who could fill the jobs, it is not 
supported by the evidence as those positions were vacant and no evidence was put that 
they had been filled. Further, Ventyx’s own policy commits it to giving preference to 
“suitably qualified and experienced employees whose positions have become 
redundant when filling all vacancies prior to external advertising.”

[50] I am therefore satisfied that it would have been reasonable to redeploy Mr Murray 
to one of the positions on the list provided by Ventyx. At the very least these matters 
should have been fully explored during the discussion process.

[78] The Full Bench in Re: Pykett considered the basis on which the Commission can reach 
a finding in relation to s.392 of the Act. In so doing it found as follows:

[35] As we have mentioned, the use of the past tense in the expression ‘would have 
been reasonable in all the circumstances for the person to be redeployed ...’ in section 
389 (2)(a) directs attention to the circumstances which pertained when the person was 
dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question 
which must be answered by reference to all of the relevant circumstances’. The 
question is whether redeployment within the employer’s enterprise or an associated 
entity would have been reasonable at the time of dismissal. In answering that question 








[2014] FWCFB 2143

17

the Full Bench in Honeysett observed that a number of matters are capable of being 
relevant: 

“They include 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 in relation to the employee’s residence and the remuneration 
which is offered”.

[36] [...] For the purposes of s.389(2) 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. There must also be an 
appropriate evidentiary basis for such a finding. Such an interpretation is consistent 
with the ordinary and natural meaning of the words in the subsection; the Explanatory 
Memorandum and Full Bench authority. We acknowledge that the facts relevant to 
such a finding will usually be peculiarly within the knowledge of the employer 
respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine 
redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to 
the following matters: 

(i) that the employer no longer required the dismissed employee’s job to be 
performed by anyone because of changes in the operational requirements of the 
employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or 
enterprise agreement to consult about the redundancy and whether the 
employer complied with that obligation; and

(iii) 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 employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken 
by the employer to identify other work which could be performed by the dismissed 
employee. 

[38] As we have mentioned, we accept the respondent’s submissions as to the proper 
construction of s.389(2). But that is not the end of the matter. The difficulty for the 
respondent is that the Commissioner failed to make the requisite finding and for that 
reason the appeal must be upheld [...].

[79] The Full Bench went on to consider the relevant findings of the decision under appeal, 
including the following:

[33] The respondent has objected to the application on the basis the termination of the 
applicant’s employment was a “genuine redundancy”. It would, however, in my view, 
have been reasonable in all the circumstances for the respondent to redeploy or to 
consider redeploying the applicant within its enterprise other than to an advertised, 
permanent vacancy. I do not consider it necessary in the circumstances of this case to 
determine which position, specifically, would have been appropriate for redeployment 








[2014] FWCFB 2143

18

of the applicant. That the respondent did not allow for any consideration of the 
redeployment of the applicant within its enterprise other than under the artificial 
confines of the Managing Excess Employees-conditioned understanding of 
“redeployment”, in and of itself, leads me to the conclusion the dismissal was not a 
genuine redundancy within the meaning of the Act.”

[80] The Full Bench went on to conclude in relation to the above finding that:

[40] The Commissioner erroneously focussed on the inadequacy of the appellant’s 
redeployment policy and failed to make a finding that there was a job, a position or 
other work to which Ms Pykett could have been redeployed. Such a finding is a 
necessary step in reaching the conclusion that it would have been reasonable in all the 
circumstances for Ms Pykett to be redeployed within the appellant’s enterprise. The 
failure to make such a finding is an error which warrants correction on appeal. [2014] 
FWCFB 714 [Our emphasis] 

[81] We note that the decision in Re: Pykett was handed down the day prior to the 
publication of the Deputy President’s decision. The practical opportunity to have regard to 
that authority was therefore limited.

[82] Notwithstanding this, in the current circumstance, the Deputy President was aware that 
there was a list of vacant positions made available to Mr Murray, but there was no 
information at all about those positions and whether they were positions to which Mr Murray 
may have been redeployed (let alone reasonably so). None of the positions were identified by 
the Deputy President in her decision. As we discuss further below, there can be no expectation 
that the list of positions were given to Mr Murray for redeployment purposes in any event.

[83] Nonetheless, the Deputy President concluded that the Applicant could have been 
reasonably redeployed to an undefined position on that list:

[50] I am therefore satisfied that it would have been reasonable to redeploy Mr Murray 
to one of the positions on the list provided by Ventyx.

[84] Despite so finding, however, the Deputy President also found that she could:

[45] only assume that Ventyx considered at least some of the jobs on the list were 
suitable for Mr Murray [...]. [Our emphasis]

[85] And later in her decision, the Deputy President went on to find that:

[60] Had Ventyx complied with their policy, I consider there was a chance that Mr 
Murray would have been redeployed.

[86] We think the Deputy President’s wider findings shed light on the scant evidentiary 
support for a finding that Mr Murray could have been redeployed to an (unidentified) job on a 
list comprising various jobs and positions. The Deputy President herself made no findings 
about the jobs on the list, and only found that there was only a “chance” that Mr Murray
would have been redeployed. The Deputy President, further, found that she could only
“assume” Ventyx believed Mr Murray could have been suitable for “some” of the jobs on the 








[2014] FWCFB 2143

19

list as provided to him (though she originally found that Mr Murray could have been 
redeployed to “one” of the positions on the list).

[87] Absent a properly evidenced finding that there was a position to which Mr Murray 
could have been re-deployed, the Deputy President was not jurisdictionally positioned to 
determine whether it would have been reasonable in all the circumstances to redeploy Mr 
Murray:

Such a finding is a necessary step in reaching the conclusion that it would have been 
reasonable in all the circumstances for Ms Pykett to be redeployed within the 
appellant’s enterprise.5

[88] Even assuming there had been a position to which Mr Murray could have been 
redeployed, it was also argued on appeal in relation to the Deputy President’s consideration of 
the reasonableness of redeployment, that the Deputy President had failed to take into account 
certain evidence led by Ventyx such as:

 The cost to relocate a staff member overseas was significant (approximately $15,000 
- $30,000); 

 All the recruitment processes (interviewing etc) for overseas positions took place 
locally;

 There were no business reasons for the redeployment or demand for the skills 
locally;

 Efforts by Mr Weerasekera to find alternative jobs for Mr Murray and that he did 
whatever he could (to stop Mr Murray becoming redundant) and looked at “any 
work” that would give Mr Murray some “billable utilisation”.

[89] This was evidence (along with that of Mr Storer which is set out further below) that 
went unchallenged at the initial hearing. It was relevant to the finding as to the reasonableness 
(or not) of the redeployment of Mr Murray to Atlanta. It is true the Deputy President herself 
questioned that evidence in her decision by herself proposing ‘counterbalancing’ arguments 
(see paragraphs 46, 48 and 49 of the Deputy President’s decision). But in doing so the Deputy 
President did not rely on any contrary evidence for that purpose. 

[90] Because of this, we further think the Deputy President’s finding in relation to the 
reasonableness of redeployment (assuming that there had been a position to which Mr Murray 
could have been redeployed) was not available to her in so far as she did not take into account 
the unchallenged evidence above. Thus, the “hypothetical question”, to which the Full Bench 
in Re: Honeysett referred (see above), could not have been answered.

Conclusion on jurisdiction

[91] We have found that the Deputy President fell into error in various aspects of her 
exercise of jurisdiction under s.389 of the Act. The Deputy President’s finding in relation to 
one element of s.389(1)(b) of the Act, however, was sound on review.

                                               
5 Technical and Further Education Commission T/A TAFE NSW v L. Pykett [2014] FWCFB 714 at [40].








[2014] FWCFB 2143

20

[92] On the basis of this singular jurisdictional deficiency (against its award obligations), 
Ventyx cannot be found to have made Mr Murray “genuinely redundant” for the wider 
purposes of s.389 of the Act.  

[93] As a consequence of this conclusion, we now turn to consider the Deputy President’s 
finding in relation to the substantive matter.

Findings on Merit: Section 387

[94] The Deputy President found largely it would appear that the requirements of s.387(a), 
(d), (e), (f) and (g) of the Act were of neutral or no significance for her ultimate 
determination, or else had been complied with by Ventyx. Some of her findings in other 
respects require some comment by the Bench, however. 

s.387(b) of the Act: Notice

[95] In relation to her considerations under s.387(b) of the Act, the Deputy President 
commented that “this provision is neutral if the reason for the dismissal did not relate to the 
capacity or conduct of the dismissed employee”. But the Deputy President immediately went 
on to say that “whether this criterion is taken into account here or when considering s.387(h) 
the failure to afford employees procedural fairness prior to the dismissal is a relevant factor in 
determining if the termination is unfair.”  

[96] It appears that the Deputy President was of the view that notice in respect of an 
operational reason (not being a valid reason for s.387(a) of the Act) was nonetheless a matter 
that warranted apportioning weight for the ultimate finding (that the dismissal was harsh, just 
or unreasonable) under either s.387(b) or s.387(h) of the Act.

[97] As the Deputy President herself found by reference to the Full Bench in UES (Int’l) 
Pty Ltd [2012] FWAFB 5241 (“Re: UES”), the notice  referred to under s.387(b) is in respect 
of “that reason”, and “that reason” relates to the valid reason under s.387(a) of the Act. 

[98] It follows that the issue of notice in respect of an operational reason cannot be the 
subject of a finding under s.387(b) of the Act, as the Full Bench in Re: UES made clear. So 
far as the Deputy President’s decision suggests to the contrary, she fell into error.

[99] We note further that the Deputy President went on to rely on the Full Bench decision 
in Re: Crozier v Palazzo Corporation Pty Ltd S5897 (“Re: Crozier”) and quoted the 
following extract:

As a matter of logic procedural fairness would require that an employee be notified of 
a valid reason for the termination before any decision is taken to terminate their 
employment in order to provide them with an opportunity to respond to the reasons 
identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect 
if it was sufficient to notify employees and give them an opportunity to respond after a 
decision had been made to terminate their employment. Much like shutting the stable 
door after the horse has bolted. [Our emphasis]

[100] Having so quoted the Full Bench, the Deputy President concluded:








[2014] FWCFB 2143

21

Mr Murray was given a letter of termination on 1 July 2013 to take effect on 2 July 
2013. Mr Murray was notified of the reason after the decision to terminate his 
employment had been taken.6

[101] We consider that contrary to the premise of the Deputy President’s reasoning above, 
the Full Bench as cited above is not referring to a situation in which an employee had been 
terminated for operational reasons/redundancy. The Full Bench in Re: Crozier was referring, 
instead, to notice given in relation to a valid reason arising from a dismissal based on capacity 
and/or conduct for the purposes of s.170CG(3)(b) of the Workplace Relations Act 1996, 
which is in identical terms as current s.387(b) of the Act. 

[102] On the face of its plain words, the Full Bench made the point that an employee was 
required to be notified of the valid reason for the dismissal so he or she could respond prior to 
the dismissal taking effect. Further (and again), the Full Bench in Re: Crozier was concerned 
with the operation of s.170CG(3)(b) of the Workplace Relations Act 1996 (and now current 
s.387(b) of the Act) and is not relevant to circumstances where a dismissal is because of an 
operational reason. To the extent the Deputy President considered otherwise her findings were 
in error, and misapplied the authority in Re: Crozier (at the expense of the authority in Re: 
UES).

[103] We think any consideration of the relevance of notice to an operational reason for 
dismissal is a matter best considered under s.387(h) of the Act (and then in the context of the 
award provision in relation to consultation in relation to major change and not otherwise). 

Section 387(c) of the Act: opportunity to respond to “any reason related to the capacity 
or conduct of the person”

[104] The Deputy President found as follows:

For the reasons are set out above in relation to s.387(b), UES suggest that this factor is 
neutral. However I adopt the same position as I did to section 387(b) which is that it is 
a relevant factor. The opportunity to respond must be given before a decision is taken 
to terminate the employee’s employment.7

[105] The circumstances of this case relate to a dismissal on the basis of operational 
circumstances, which was accepted by the Deputy President. As such, the matter cannot be “a 
relevant factor” for purposes of s.387(c) of the Act. In so far as the Deputy President intended 
to convey otherwise she fell into error. 

[106] A matter concerning whether an employee was given an opportunity to respond to an 
operational reason for his or her dismissal is a matter perhaps best canvassed under s.387(h) 
of the Act. We have commented above that s.387(b) of the Act, like s.387(c) of the Act,
relates to a valid reason finding made under s.387(a) of the Act, and has no application where 
the employee’s employment is terminated for operational reasons/redundancy. The Full 
Bench in Re: UES, which concerned a dismissal for operational reasons/redundancy, put it 
this way:

                                               
6 [2014] FWC 516 at [56].
7 [2014] FWC 516 at [57].








[2014] FWCFB 2143

22

The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural 
fairness in respect of a reason for dismissal related to Mr Harvey's capacity or conduct 
as a matter of fact Mr Harvey was not notified or given an opportunity to respond to 
reason to his dismissal related to his capacity or conduct however given the reasons his 
dismissal, we regard them as neutral matter is with respect to our consideration as to 
whether Mr Harvey's dismissal was harsh, unjust or unreasonable.8

Section 387(h) of the Act

[107] The Deputy President went on to find that for purposes of s.387(h) of the Act, 
however, that the dismissal of Mr Murray was for a sound, defensible or well founded reason:

[63] Mr Murray’s employment was terminated because at the time Ventyx decided it 
was going to reduce its workforce in the consultancy business, he was on the bench. I 
have accepted that there were operational reasons for the decision to reduce the 
number of employees in the business. [...] I therefore conclude that there was a sound, 
defensible or well founded reason for the termination of Mr Murray’s employment. 

[108] The Deputy President found that Ventyx had not misled Mr Murray at the time of his 
recruitment about his employment security (noting that Mr Murray had only been employed 
for some 14 months): 

[64] While Mr Murray made submissions about his relocation from the UK to 
Australia to take up this position, he was not head hunted and there was no deception 
involved in his recruitment. There was no evidence that Ventyx was planning to 
downsize its business when they offered Mr Murray a job. He knew that he was being 
employed as a TPM and that he could be moved from project to project. 

[109] The Deputy President found that Ventyx had acted unfairly (albeit lawfully) against 
Mr Murray: 

[65] Mr Murray was given no notice of the decision to downsize the business. He was
given no real opportunity to find other work within Ventyx or with its associated 
entities. He was given no real opportunity to change Ventyx’s decision. Further, 
Ventyx did not comply with its own redeployment policy and examine both 
comparable and non comparable positions for Mr Murray. Employees are entitled to 
expect that companies will comply with the policies they promulgate. While I accept 
that Ventyx was lawfully entitled to buy out the notice period to do so in 
circumstances that made its redundancy policy ineffective is unfair. 

[110] The Deputy President went on to find that there was a chance Mr Murray might have 
been redeployed:

[66] Had Ventyx complied with their policy, I consider there was a chance that Mr 
Murray would have been redeployed. 

[111] The Deputy President proceeded to find that:

                                               
8 [2012] FWAFB 5241 at [42].








[2014] FWCFB 2143

23

Ventyx submitted that I should find that the failure to consult does not make the 
termination unfair. I do not agree. Had consultation occurred Mr Murray would have 
been better able to look for work within Ventyx and with other companies. He would 
have had the opportunity to look for work whilst still in work. Mr Murray was denied 
the opportunity that was provided for in the Ventyx policy to be redeployed to a 
comparable and non-comparable position. Mr Murray was presented with a fait 
accompli dressed up as consultation. He was unfairly dismissed.

[112] We do not find the Deputy President’s finding immediately above to be capable of 
being supported by the factual case before her. 

[113] The point raised expressly on appeal was that (then) clause 9.2 of the award was not 
directed at providing a “job search” opportunity as it required discrete discussion instead. And 
in any event, there was no evidence that could lead to a conclusion that Mr Murray was better 
placed to find work from a condition of employment.

[114] We do not discern from the evidence how if “consultation” (by which we presume the 
Deputy President meant “discussion”) under the award had occurred that it would have meant 
that “Mr Murray would have been better able to look for work within Ventyx and with other 
companies”. The only evidence that was germane to the matter was that of Mr Weerasekera, 
and his unchallenged claim was that there were no jobs in Australia in Ventyx that were 
suitable for the Applicant. 

[115] Equally we do not discern any evidentiary basis for the Deputy President’s finding that 
if “consultation” had been extended (further) then the Applicant would have been better 
placed to look for work “in other companies”. Again, this is a finding made without any 
evidentiary foundation.

[116] The related point on appeal was that Ventyx’s conduct in acting lawfully in making 
payment in lieu of notice could not give rise to a finding that it had acted “unfairly”.

[117] We agree. The fact that Ventyx acted as it lawfully might to make payment of notice 
in lieu (in circumstances where there were no Australian-based jobs available) does not 
establish unfairness for the wider purposes of s.387(h) of the Act.

[118] We note here too that the Deputy President found that the making of payment in lieu 
of notice was contradictory to Ventyx’s Redundancy, Redeployment and Retrenchment Policy 
(“the Policy”). But here we point out that the Policy states that Ventyx will:

[...] at its discretion, make a payment in lieu of requiring the employee to work for all 
or part of the relevant notice period.

[119] To summarise: the Deputy President’s finding under s.387 of the Act variously 
mischaracterised the award obligation; lack sufficient nexus with an evidentiary context;
misrepresented the authority in Re: Crozier; and unreasonably construed lawful conduct
(articulated in the redeployment policy) to be unfair. These are matters because of their scope 
and significance that warrant granting permission to appeal and quashing the decision of the 
Deputy President.








[2014] FWCFB 2143

24

Findings on Remedy: Section 390 

[120] We think for reason of completeness that it is desirable to comment upon the Deputy 
President’s findings in relation to remedy, as they were subject of considerable focus on 
appeal.

[121] The principal finding subject of the appeal was that the Deputy President concluded, 
for purposes of s.392(c) of the Act, that but for the termination of Mr Murray’s employment, 
he would have been employed for “another 12 months”9

[122] The point on appeal here was that the Deputy President used an erroneous method for 
the assessment of the remuneration that Mr Murray would have received or would have been 
likely to receive if he had not been dismissed.

[123] It is proper that we proceed by way of considering the Deputy President’s finding in 
its context.

[124] The Deputy President found, initially, that it was not “appropriate in the circumstances 
to reinstate Mr Murray” and that there were no TPM jobs available for Mr Murray at the time 
of his termination or thereafter:

[69] Mr Murray is seeking reinstatement of his employment. I accept that Ventyx had 
to reduce staff and that no new staff, except for one sales position, have been 
employed by Ventyx consulting team since July 2013. No evidence was called about 
employment in other teams or associated entities. Mr Murray submitted that he had 
expertise in areas that Ventyx was moving into but evidence was given that this work 
did not eventuate. I accept that things have not improved in the six months since the 
termination. I accept that there are no TPM positions any more. 

[125] No finding was made in relation to s.391(b) of the Act, as to whether appointment to 
another position on terms and conditions no less favourable than those on which Mr Murray 
was employed before the dismissal (or termination) was appropriate. 

[126] Nor did the Deputy President make a finding in relation to s.391(1A) of the Act, which 
concerns appointment to an associated entity of the employer when an employee’s position no 
longer exists.

[127] The Deputy President continued:

[73] Had there been consultation, Mr Murray may have found alternative work. While 
Ventyx had decided to no longer use TPM’s, it still had roles for technical leads and 
there was no evidence that Mr Murray was not qualified to do that work albeit paid at 
a lower rate of pay. Further it had vacancies both in and out of Australia. 

[74] There was evidence that the other technical project manager had applied for a 
senior project manager position which he took up in November 2012. It was not clear 
from the evidence when this position was advertised. 

                                               
9 [2014] FWC 516 at [75].








[2014] FWCFB 2143

25

[75] In all the circumstances, I consider that Mr Murray would have remained in 
employment for another 12 months. I have had regard to Mr Murray’s willingness to 
consider a lower paid position or positions overseas without the payment of relocation 
payments as an alternative to redundancy. I also accept that Mr Murray like the other 
TPM could have transitioned to a number of different roles. 

[128] A point was also taken on appeal that the Deputy President misdirected herself in so 
far as she misunderstood the evidence led in relation to her conclusion that “Mr Murray like 
the other TPM could have transitioned to a number of different roles”.

[129] The evidence of Mr Weerasekera was that another TPM had been seconded to a 
different Division of Ventyx where he continued to perform duties on an ongoing project on 
which he had been engaged. There was no evidence that this TPM had been “transitioned” to 
another role at the time of Mr Murray’s redundancy, or that that TPM had been provided with 
a means of avoiding redundancy whereas Mr Murray had not. In short, the circumstances of 
the other TPM had no relevance to a finding in relation to Mr Murray. 

[130] The Deputy President concluded that she had “had regard to Mr Murray’s willingness 
to consider a lower paid position or positions overseas without the payment of relocation 
payments as an alternative to redundancy.” 

[131] We were not able to be taken to any evidence that supported the Deputy President’s 
conclusion in this regard. Mr Murray did not inform Ventyx that he was prepared to meet his 
own relocation expenses to take up a position abroad when he provided Ventyx with his 
views on mitigating the effects of the changes. This was why Ms Shrubsole’s evidence 
showed she was sensitive to this very concern in her discussions with Mr Murray.    

[132] Further, Mr Weerasekera gave unchallenged evidence (which was accepted by the 
Deputy President) that there were no jobs in Australia into which Mr Murray could have been 
redeployed. 

[133] We also note that the Deputy President relied deliberately upon her finding in relation 
to s.389(2) of the Act above as providing the presumption (in part) for her conclusion that Mr 
Murray would have been employed for a further 12 months, but for the termination of his 
employment. In so far as the Deputy President failed to identify any such position for the 
purposes of s.389(2) of the Act (as explained above), reliance cannot be had on that finding. 

[134] As a consequence, it was not open to the Deputy President on the evidence to reach 
the finding that the Applicant would have been employed for a further 12 months. In this case, 
a discrete evaluation of the available evidence was necessary in order to reach a conclusion as 
to how long Mr Murray might have remained in employment, (if at all) following the 
downsizing decision by Ventyx. That did not occur, and the ultimate finding was 
unnecessarily speculative in the circumstances. 

[135] This is perhaps more so the case when it is taken into account that the Deputy 
President formed a view (for purposes of the determination of the amount to be paid to Mr 
Murray) that the despite the redundancy for which he was dismissed Mr Murray nonetheless 
still faced the prospect of a redundancy:








[2014] FWCFB 2143

26

“I would reduce this amount by 30 per cent to allow for the possibility that Mr Murray 
would have been made redundant [...].”10

[136] We think such a finding cannot be reconciled readily with the Deputy President’s prior 
finding that Mr Murray, but for the redundancy, would have been employed for a further 12 
month period. 

Conclusion

[137] As we have earlier stated, we grant leave to appeal the decision, for reason the appeal 
attracts the public interest in that it bears upon the proper approach to the construction of 
s.389 of the Act and the various obligations upon employers that arise from clause 9.1 and 
clause 9.2 (as it was) of the modern award.

[138] We also agree with the submission made by Ventyx that it is in the public interest that 
the Full Bench should assist in developing clear lines of authorities in such areas as 
redundancy decisions of the Commission, which have a high degree of prevalence in a cross 
section of industries in the economy. 

[139] We agree, too, that Ventyx would suffer an injustice if the decision of the Deputy 
President were to be allowed to stand. As stated above, we quash the Deputy President’s 
decision.

[140] We uphold the appeal on the grounds as set out in relation to s.387 of the Act, as set 
out above, and therefore quash the decision of the Deputy President in [2014] FWC 516 and 
the order in PR547199. 

Rehearing

[141] Having quashed the decision and order of the Deputy President we now proceed to 
rehear the matter, and to consider the various requirements of s.387 of the Act through 
s.607(3)(b) of the Act. Section 387 of the Act provides as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s 
capacity or conduct (including its effect on the safety and welfare of other 
employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a 
support person present to assist at any discussions relating to dismissal; and

                                               
10 [2014] FWC 516 at [82].








[2014] FWCFB 2143

27

(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance 
before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to 
impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management 
specialists or expertise in the enterprise would be likely to impact on the 
procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Consideration

(a) whether there was a valid reason for the dismissal related to the person’s capacity or 
conduct (including its effect on the safety and welfare of other employees)

[142] We concur with the Deputy President's finding (which we discern by inference 
through reading paragraph 53 with paragraph 63 of her decision) that in the circumstances of 
a redundancy, such as occurred in this instance, no relevant finding can be made in respect of 
s.387(a) of the Act. The approach in this respect was set out by the majority in the Full Bench 
in Re: UES.11 No case was put to us or to the Deputy President that we should disregard that 
authority.

(b) whether the person was notified of that reason

[143] Consistent with the Full Bench in Re: UES, in circumstances of a redundancy for 
operational reasons, whether or not there was notice of “that reason” (being the valid reason 
referred to in s.387(a) of the Act) is not material to the wider consideration.  

(c) whether the person was given an opportunity to respond to any reason related to the 
capacity or conduct of the person

[144] For the reasons given immediately above, this matter too is a neutral matter in respect 
of our considerations as to whether or not Mr Murray’s termination was harsh, unjust or 
unreasonable.

(d) any unreasonable refusal by the employer to allow the person to have a support 
person present to assist at any discussions relating to dismissal

[145] Ventyx did not unreasonably refuse to allow Mr Murray to have a support person 
present to assist in any discussions relating to the termination of his employment. This is a 
matter of neutral affect upon our deliberations.

(e) if the dismissal related to unsatisfactory performance by the person—whether the 
person had been warned about that unsatisfactory performance before the dismissal

                                               
11 [2012] FWAFB 5241 at [42].








[2014] FWCFB 2143

28

[146] The termination of Mr Murray's employment did not relate to his unsatisfactory 
performance. This is not a matter relevant to our consideration is as to whether Mr Murray's 
dismissal was harsh, unjust or unreasonable.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on 
the procedures followed in effecting the dismissal

[147] This, too, is not a matter that is relevant to our consideration as to whether Mr 
Murray's termination was harsh, unjust or unreasonable and no evidence was led in the 
proceedings below. We regard it as a neutral matter with respect to our consideration in this 
respect.

(g) the degree to which the absence of dedicated human resource management specialists 
or expertise in the enterprise would be likely to impact on the procedures followed in 
effecting the dismissal

[148] As above, this is not a matter that is relevant to our consideration as to whether Mr 
Murray's termination was harsh, unjust or unreasonable and no evidence was led in the 
proceedings below. We regard it as a neutral matter with respect to our consideration in this 
respect.

(h) any other matters that the FWC considers relevant.

[149] The Deputy President found as follows:

[63] Mr Murray’s employment was terminated because at the time Ventyx decided it 
was going to reduce its workforce in the consultancy business, he was on the bench. I 
have accepted that there were operational reasons for the decision to reduce the 
number of employees in the business. [...] I therefore conclude that there was a sound, 
defensible or well founded reason for the termination of Mr Murray’s employment. 

[150] We agree with this finding and do not dispute its evidentiary basis.

[151] We think Ventyx’s conduct in not giving prompt consideration to matters raised by Mr 
Murray on 2 July 2013 in respect of his interest in a number of the jobs in Atlanta USA, is a 
relevant consideration as to whether or not the termination of his employment was harsh, 
unjust or unreasonable.

[152] In so far as Ventyx did not conform to this particular award obligation, it may be said 
that Mr Murray was terminated harshly.

[153] But we do not conclude that that element of harshness is decisive in relation to a 
finding as to whether or not the dismissal was harsh, unjust or unreasonable in all the 
circumstances, particularly given the finding the reason for the dismissal was “sound, 
defensible and well founded”.

[154] We turn to whether the Applicant was treated harshly or unreasonably because he was 
not relocated internationally instead of being made redundant.








[2014] FWCFB 2143

29

[155] As mentioned earlier, the unchallenged evidence in this matter was that the cost to 
relocate a staff member overseas was significant (approximately $15,000 - $30,000) and that 
Mr Murray had not indicated to the employer that he was prepared to relocate to Atlanta at his 
own cost. 

[156] There was further unchallenged evidence that all the recruitment processes 
(interviewing etc) for overseas positions took place locally (in the USA). This evidence was 
given by Mr Storer, the Senior Vice President Global Consulting, was that:

The Respondent routinely send staff overseas to different offices to work on a 
customer engagements for up to 12 months, although around 3 months or less is 
usually standard because it is expensive and there are tax implications. The expenses 
relate to accommodation and travel. The Respondent customers prefer to engage a 
locally-based staff in order to avoid paying out-of-pocket expenses for accommodation 
and travel. Further, in many countries using overseas staff for more than a short period 
can mean that a permanent position has been established, which will then mean 
assessment for income tax purposes.

Occasionally staff in the consulting team moved between countries on a permanent 
basis for a career change or other personal reasons that there would be no more than 2 
to 3 per year globally. However, there needs to be a position available in the relevant 
office; as far as I know, positions aren’t “created” to facilitate a move. If a staff 
member applies for a position and is successful, the Respondent will usually take 
reasonable relocation expenses. 

It is unusual to relocate staff overseas; there needs to be a business reason for the 
move. The staff member has a skill set that is not available locally, or specialist 
knowledge of one of the Respondents target industries. The Respondent generally 
won't move skill set if it can be obtained locally. When considering a potential 
relocation, the main consideration would be whether the staff member could do the job 
and whether they were the only person who could do the job. 

There is no policy in place which sets out the reasons for relocating staff; it depends 
on the circumstances and the staff member involved.

[...]

There is a preference to locally based recruitment because it is easier, and cheaper; 
candidates can be interviewed without significant cost, and their skills and experience 
will be directly relevant to the local customers. There are also local support networks 
already in place for the staff member in terms of family and friends. This is important 
because consulting engagements can be demanding and time-consuming e.g. When an 
important customer deadline must be achieved. 

It costs between $15,000-$30,000 to relocate a staff member overseas. These costs can 
include flights, shipment of goods, temporary accommodation, transport tax advice 
etc. the expense is significant and it is an important factor when considering whether 
relocation is an option.








[2014] FWCFB 2143

30

There is global involvement in all recruitment, as a signoff has to occur at that level, 
but all of the recruitment in terms of intervening in reviewing of CVs takes place at the 
local level.

It is not possible to just parachute a staff member into a role in an overseas office. The 
same principles would apply as for a relocation in terms of the business case for the 
move and whether the staff member was the best or only person with the skills and 
experience to perform the role.

I don't believe it would’ve been reasonable to relocate the Applicant to the Atlanta 
office because:

 There were no business reasons to relocate the Applicant;
 The cost to relocate the Applicant would have been significant (approximately 

$15,000); and
 There were local people who could fill the roles.

[157] This evidence was unchallenged.

[158] We do not consider that it was unreasonable (or otherwise) for Ventyx to proceed to 
terminate Mr Murray’s employment on grounds of redundancy instead of providing an 
overseas redeployment. In the circumstances, we consider it reasonable that on the evidence 
before us that Ventyx did not consider such an alternative to be practical. There was no 
established or articulated policy for overseas redeployment in redundancy situations, and 
international relocations were more the exception than the rule. Ventyx’s redundancy policy, 
referred to earlier, makes no reference to such an option or process. Mr Murray could have 
had no reasonable expectation that international relocations were available in redundancy 
situations.

[159] Generally, we do not read s.389(2) of the Act as requiring an employer to redeploy an 
employee whose position has been made redundant to any vacant position. Circumstances, on 
a case by case basis, may affect the reasonableness of such a course of action (that being 
redeployment). The Explanatory Memorandum to the Fair Work Bill 2008 (see Item 1552), 
the Full Bench decisions in Re: Pykett, Re: Honeysett (both cited above) and the Full Bench 
decision in MacLeod v Alcyone Resources Ltd T/A Alcyone12 reflect this approach.

[160] True it is that Ventyx handed to Mr Murray a list of jobs available across the global 
business, but that was a step that came after Ventyx had exhausted its investigation into 
redeployment options for the Applicant under its redundancy policy. As Counsel for Ventyx 
claimed, the provision of further information about the organisation was not a step in a 
redeployment process itself, and cannot in some manner be held to reflect adversely on the 
appellant as a consequence.

[161] We do not otherwise find that there were any other matters that were material to the 
requisite finding as to whether Mr Murray was harshly, unjustly or unreasonably dismissed.
On the evidence before us we very much doubt that any further scope for extended discussion 
beyond that provided would have led to a different result. Efforts were made by Ventyx to 
identify alternative positions or “any work” for Mr Murray that was billable. But in the end, 

                                               
12 [2014] FWCFB 1542 at [32].








[2014] FWCFB 2143

31

Mr Murray’s position was made redundant for required operational reasons, or as the Deputy 
President put it:

I accept the evidence of Ventyx that it was no longer prepared to employ surplus and it 
needed to reduce its head count. It therefore made a decision to review employees who 
were on the bench and unfortunately for Mr Murray he was on the bench at that time 
and there was no work in the pipeline for him. I therefore find that Mr Murray's 
position was redundant.13

Conclusion

[162] On the basis of the aforementioned discussions we do not conclude that Mr Murray's 
dismissal was harsh, unjust or unreasonable.

[163] We dismiss his application under s.394 of the Act upon rehearing.

[164] The stay order in PR548105 as made on 24 February 2014 is also set aside as a 
consequence. 

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Murdoch, QC, instructed by DLA Piper, for the Appellant

Mr J. Streit, of Counsel, instructed by Think Legal, for the Respondent

Hearing details:

Brisbane
2014 
3 April

Printed by authority of the Commonwealth Government Printer

Price code G, PR549176

                                               
13 [2014] FWC 516 at [19].


O FAIR NORA COMMISSION AUSTRALIA THE SEAL OFFAIR

Cases cited by this decision: