Hallam, Deborah v Sodexo Remote Sites Australia Pty Ltd - [2017] FWC 4105

1

Fair Work Act 
2009 
s.394 - Application for unfair dismissal remedy

Ms Deborah Hallam

v

Sodexo Remote Sites Australia Pty Ltd
(U2017/3968)

COMMISSIONER SPENCER BRISBANE, 4 AUGUST 2017

Application for relief from unfair dismissal – jurisdictional objection – redeployment not 
reasonable in all the circumstances – genuine redundancy.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Ms 
Deborah Hallam (the Applicant) alleging that her dismissal from Sodexo Remote Sites 
Australia Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Respondent raised 
a jurisdictional objection pursuant to s.385(d) of the Act, arguing that the dismissal was a case 
of genuine redundancy.

[2] The Applicant commenced employment with the Respondent in 2006, and was made 
redundant on 24 March 2017. At the time of her dismissal, the Applicant held the position of 
“Relief Project Manager”, however had not been rostered to work since September 2016.1

Between June 2016 and September 2016, the Applicant had worked at the Respondent’s 
worksite located in Dysart, Central Queensland. The Applicant resided in Mareeba, and 
travelled to worksites on a fly-in fly-out basis. 

[3] The Applicant was employed within one of the Respondent’s “relief pools”, 
workgroups designed to backfill positions at various worksites during periods of employee 
absence.2 Whilst the relief pools were predominately designed to backfill labour positions, the 
Applicant was employed as a manager within her respective relief pool.3

[4] On 24 February 2017, the Respondent sent the Applicant the following termination 
letter:

“Dear Deborah,

                                               
1 Statutory Declaration of Deborah Hallam declared 15 June 2017 at [17].
2 Statutory Declaration of Colin Purves declared 23 May 2017 at [5].
3 Ibid at [6].

[2017] FWC 4105 [Note: An appeal pursuant to s.604 (C2017/4642) was 
lodged against this decision- refer to Full Bench decision dated 19 
December 2017 [[2017] FWCFB 6847] and Full Bench Decision dated 15 
March 2018 [2018] FWCFB 1496] for result of appeal.]

DECISION


E AUSTRALIA FairWork Commission




 

http://www.fwc.gov.au/documents/decisionssigned/html/2018FWCFB1496.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6847.htm


[2017] FWC 4105

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Re: Termination of Employment

To operate our business in-line with our Client’s expectations and within the scope of 
our commercial contract we are required to continually review and adjust our 
operations at the workplace level.  This allows us to remain competitive in the market 
and ensures that we deliver the Quality of Life services to our Clients and employees.

In line with our latest business review to optimise labour efficiencies the company has 
decided to change the construct and application of the relief pool across its broader 
operations. This means the intermittent and irregular workforce needed to cover its 
unpredictable operational requirements will now be sourced, if and when required, 
through a labour hire agency.  As a result of this operational change, your position as a 
relief employee has been deemed redundant and will no longer be required to be 
performed.

Future opportunities of employment

It is good practice to minimise the adverse effects of changes and attempt to retain our 
valued staff. For this reason we would like you to consider other suitable 
redeployment opportunities within the business.

We have provided to you a full list of current vacancies within our business nationally. 
If you are interested in any of the listed vacancies please notify us in writing and 
outline the position, the work location, your knowledge, skills, experience, and your 
qualifications / licences as required by the position.

It should be noted that if Sodexo is unable to reasonably redeploy you, your 
employment with Sodexo will be terminated in line with your industrial instrument 
with final day of employment being Friday 24th March 2017.

You will of course receive all due termination entitlements and Sodexo will also assist 
to provide career transition support.  Sodexo’s Employee Assistance Program is also 
available as an anonymous support resource for you during this difficult time.

To avoid any certainty, the purpose of this letter is also to give you at least the 
required period of notice of termination.

Employment with Agencies

Sodexo Energy and Resources - Mining is currently working primarily with two global 
labour hire Agencies, namely Chandler Macleod and HAYS. Both of these companies
have expressed interest in engaging Sodexo Employees from our relief pool to cover 
casual workforce requirements for their broad range of clients.  Should you wish to 
explore these options further, please refer to the contact details included below.

…

If you have any questions or wish to discuss further about the termination of 
employment notified in this letter, your Scheduler will be able to assist by phone and 
email with some of your questions. If you prefer to meet with an HR representative, 








[2017] FWC 4105

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please let your scheduler know as they will be able to book a suitable time for this. 
The relevant contact details are included below:

…

Yours sincerely,

Shalyn Jones
HR Operations Manager” (emphasis added)

[5] The Applicant was made redundant as the result of a restructure that saw the relief 
pools outsourced to an external labour hire company. The Respondent submitted that there 
were significant commercial benefits to the restructure. It was submitted by Counsel for the 
Applicant, that the Applicant’s case revolves around the application of s.398(2), and whether 
it would have been reasonable, in all the circumstances, to redeploy the Applicant within the 
Respondent’s, or with any of its associated entities’, enterprises.4

[6] The Applicant submitted that there were several positions into which she was capable 
of being redeployed, and that the Respondent had failed to provide sufficient notice to the 
Applicant of the redundancy. In addition, it was submitted that the Respondent did not make 
all reasonable attempts to redeploy the Applicant.

[7] The Respondent objected to conciliation prior to the determination of the jurisdictional 
objection. Pursuant to s.396 of the Act, the Fair Work Commission (the Commission) must 
first consider the jurisdictional objection, prior to dealing with the merits of the application. 
Accordingly, it was agreed with the parties that the jurisdictional objection would be 
determined and Directions were set for the filing of material. The matter was heard by consent 
in Brisbane (with video link to the Cairns court house) on 5 July 2017, and 14 July 2017.

[8] The parties further agreed that, subject to this Decision, given that conciliation of this 
matter had not occurred, they would engage in discussions relating to the progress of the 
application.

[9] At the Hearing, the Applicant was represented by Mr Ryan Haddrick of Counsel, 
instructed by Ms Amanda Langtree, Associate with Preston Law, who both appeared with 
permission granted pursuant to s.596 of the Act. The Respondent was represented by Mr Sean 
Edwards, Legal Counsel – Workplace Relations and Employment (in-house counsel) of the 
Respondent.

[10] Whilst not all of the evidence and submissions are referred to in this Decision, all of 
such have been considered.

RELEVANT LEGISLATION 

[11] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

                                               
4 Transcript dated 14 July 2017 at PN25.








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A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal 
Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: 
see section 388.”

[12] Relevantly, s.389 of the Act provides:

“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.”

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[13] The Respondent was part of a large multinational group of companies, operating in 
approximately 80 countries, and employing over 3000 people in Australia.5 The associated 
corporate entities of the Respondent (Sodexo Remote Sites Australia Pty Ltd) in Australia 
were: IFM Services Pty Ltd and Sodexo Australia Pty Ltd.6  

[14] The Respondent raised a jurisdictional objection pursuant to s.385(d) of the Act, 
stating that the dismissal was a case of genuine redundancy. Accordingly, it was submitted by 
the Respondent that it bears the onus of proof to satisfy the requirements of s.389 of the Act.7

                                               
5 Transcript dated 5 July 2017 at PN642 – PN645.
6 Ibid at PN868 – PN872.
7 Roy Morgan Research Ltd v Baker [2013] FWCFB 8936 [21] – [27].








[2017] FWC 4105

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[15] The Respondent submitted that in late 2016, a business decision was made to eliminate 
four of the Respondent’s relief pools from its operations. The Respondent’s seasonal relief 
employees were replaced with labour sourced through an external labour hire company, and 
its permanent relief employees (such as the Applicant) were replaced by existing employees 
from each individual worksite operated by the Respondent. In stating that the loss of the 
Applicant’s job was a genuine redundancy, the Respondent referred to the Explanatory 
Memorandum to the Fair Work Bill 2009, which relevantly provides:

“1548. The following are possible examples of a change in the operational 
requirements of an enterprise:

…

 the employer is restructuring their business to improve efficiency and the tasks done 
by a particular employee are distributed between several other employees and 
therefore the person's job no longer exists.”

[16] The Respondent submitted that the result of the organisational change was such that 
the Applicant’s duties and functions were redistributed to the existing employees. It was 
submitted that the Applicant, “no longer had any functions or duties left to discharge.”8

[17] Mr Colin Purves, Human Resources Director – Energy and Resources of the 
Respondent, provided a statement and oral evidence in these proceedings. Mr Purves stated 
that, in August 2016, the Respondent had commenced a project to, “optimise the relief 
pools”.9 Mr Purves stated that a business decision was made to terminate several relief pools, 
and source the Respondent’s, “intermittent and irregular workforce from labour hire 
agencies, and utilise its existing permanent labour from the work sites to backfill management 
positions”.10

[18] It was clarified at the Hearing, that the decision to terminate the relief pools was 
approved by the Respondent in either November or December 2016,11 however the proposal 
was first contemplated in either August or September 2016.12

[19] The business case in support of the decision, projected a cost saving of 
$2,434,440.86.13 In the case of relief project managers (such as the Applicant), Mr Purves 
stated, “…Sodexo no longer had the obligation to pay permanent employees (i.e. relief pool 
managers) their high wages when the employee remained ready, willing and able to perform 
their services and Sodexo was unable, for whatever reason, to place them at a client site…”14

Mr Purves identified several key problems with the relief pools, including the burden to 
administer and manage the relief pools;15 the inherent lack of ownership, accountability and 

                                               
8 Submissions of the Respondent dated 25 May 2017 at [13].
9 Statement of Colin Purves declared 23 May 2017 at [18].
10 Ibid at [19].
11 Transcript dated 5 July 2017 at PN668.
12 Ibid at PN672.
13 Statement of Colin Purves declared 23 May 2017 at [23].
14 Ibid at [27].
15 Ibid at [31].








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responsibility for a workforce that is viewed as transient;16 and the lack of clear reporting and 
governance for sites, where relief pools operated.17

[20] The Respondent submitted that it is not relevant whether the duties of the Applicant 
continue to exist but rather, “whether the job previously performed by the Applicant still 
exists.”18  The Respondent submitted that, whilst the functions and duties of the Applicant’s 
role have been redistributed to other employees, the position itself no longer exists, and in 
accordance with the example provided in the Explanatory Memorandum, it had improved the 
efficiency of its business by distributing the Applicant’s duties to other employees.

[21] The Respondent submitted that there were genuine and demonstrable changes to its 
operational requirements. It submitted that the relief pools had, “evolved and morphed over 
time, polluting the labour mix with management positions, poor performing employees, 
employees with site or other restrictions, and adding rigid and inflexible, inefficient, 
cumbersome, and costly work processes; significantly eroding the Respondent's 
competitiveness and lean profit margins.”19

[22] Mr Purves made reference to the Respondent’s redeployment obligations, in particular 
he stated:

“Where  there  was an open position  or  vacancy  within  the  Sodexo  business  or  
associated  entity  and  an  affected employee could reasonably perform that role (even 
if some upskilling was required) then that affected employee would be redeployed into 
that role.  Any employee affected by this optimisation program would not… be 
required to apply for or compete against the market for a suitable role… It is 
important to note, that almost all of these new roles were non-management roles… I 
believe that at the time of the optimisation project, less than 1% of all existing and 
generated vacancies in Sodexo and its associated entities may have been management 
or supervisory roles… we provided  all affected employees  with a list of open 
vacancies  within Sodexo and its associated  businesses. Whilst these positions had 
been previously advertised in open market, the affected employees were asked to 
review these positions, notify and discuss with us if there were any suitable positions 
that interested them, and if the position was suitable then they would be redeployed 
into that position without any form of an application or the need compete with the 
open market.” 20

[23] In relation to the redeployment obligations, the Respondent, in assessing alternative 
jobs for the Applicant and the process of implementation, referred to the case of Kekeris v A. 
Hartrodt Australia Pty Ltd,21 where it was held that:

“[27] 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 positions in the new 

                                               
16 Ibid at [35].
17 Ibid at [38].
18 Submissions of the Respondent dated 25 May 2017 at [16]; see Ulan Coal Mines Limited v Honeysett and Ors [2010] 

FWAFB 7578.
19 Submissions of the Respondent dated 25 May 2017 at [21].
20 Ibid at [42], [45] and [47].
21 [2010] FWA 674.








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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. The evidence 
clearly discloses that none of the supervisory positions that existed prior to the 
restructure survived. In particular, the applicant’s job of supervisor of sea freight 
import and export no longer exists.”

[24] The Respondent stated that this case was relevant to the Applicant; when considering 
the duties, experience and qualifications of the alternative positions.

[25] Ms Shalyn Jones, Human Resources Manager – Energy and Resources for the 
Respondent, provided evidence in these proceedings. Ms Jones was responsible for engaging 
with the Applicant, regarding any opportunities for redeployment within the Respondent’s 
enterprise.

[26] In her Statutory Declaration, Ms Jones detailed the steps taken to consult with the 
Applicant regarding the redundancy and the redeployment process. These steps are critical to 
the redeployment process and have been summarised below.

[27] On 24 February 2017, Ms Jones effected correspondence to be sent by post to the 
Applicant, advising her that her position was to be made redundant effective 24 March 2017. 
The correspondence contained a list of vacancies nationwide, across the Respondent’s 
enterprise, and its associated entities; enterprises (national vacancy list).22

[28] On 28 February 2017, Ms Jones telephoned the Applicant on her mobile number as 
recorded on the Respondent’s personnel file, to confirm receipt of the correspondence. The
telephone call was not answered, and Ms Jones was not able to leave a message.

[29] On 2 March 2017, the Applicant telephoned Ms Jones. During that telephone 
conversation, Ms Jones became aware that the telephone number listed for the Applicant on 
the Respondent’s file was not current. Ms Jones stated that the Applicant said she had not 
received the letter and national vacancy list sent to her. Ms Jones indicated to the Applicant 
that she would be communicating with her over the next four weeks, to explore redeployment 
opportunities. Ms Jones indicated to the Applicant, that if a suitable position for redeployment 
could not be identified, the Applicant’s employment would be terminated. 

[30] The Applicant and Ms Jones agreed to communicate over the following weeks to 
discuss redeployment opportunities, however Ms Jones was given the impression that the 
Applicant expected her to, “do all the work.” The Applicant also indicated to Ms Jones that 
her preferred form of communication would be email. Ms Jones emailed the Applicant the 
letter and a copy of the national vacancy list.

[31] On 3 March 2017, the Applicant emailed Ms Jones with a list of concerns, including: 
that the national vacancy list did not contain any similar positions and that the Respondent 
had not attempted to mitigate the effects of the redundancies. The Applicant requested copies 
of her employment records.

                                               
22 Statement of Ms Shalyn Jones sworn 22 May 2017 at Annexure 4.








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[32] Ms Jones attempted to telephone the Applicant, however the Applicant did not answer 
her phone. Ms Jones emailed the Applicant, indicating that the Applicant had been provided 
with the requisite notice of the redundancies.

[33] On 4 March 2017, the Applicant emailed Ms Jones reiterating that she felt that the 
Respondent had not attempted to contact her. On 7 March 2017, Ms Jones emailed the 
Applicant copies of her employment contracts, in accordance with the request in the 
Applicant’s email dated 3 March 2017.

[34] On 16 March 2017, Ms Jones emailed the Applicant a new copy of the national 
vacancy list, and requested that the Applicant notify her if she had an interest in any positions. 
The same day, the Applicant emailed Ms Jones and stated that hardcopy versions of her 
employment records had not been received. The Applicant did not comment on the national 
vacancy list.

[35] On 17 March 2017, Ms Jones emailed the Applicant to inform her that she was out of 
the country, and would contact her next on 20 March 2017. On 20 March 2017, Ms Jones 
telephoned the Applicant in relation to the national vacancy list. Ms Jones stated that the 
Applicant told her that, “there was nothing in the list of vacancies that seemed relevant to her 
and therefore was not interested in any of those options.”23 During the telephone call, Ms 
Jones identified several positions for redeployment, including a Site Administrator position. 
Ms Jones stated that the Applicant did not consider that the Site Administrator position was 
suitable for redeployment. 

[36] On 21 March 2017, the Applicant emailed Ms Jones, alleging that Ms Jones had not 
contacted her, and that the process was unfair. Ms Jones telephoned the Applicant to discuss 
her email. Ms Jones followed up those discussions with an email sent to the Applicant, which 
recorded that Ms Jones indicated that the Applicant was required to engage in discussions 
with the Respondent regarding redeployment, rather than the process requiring unilateral 
effort on the Respondent’s behalf.

[37] On 22 March 2017, the Applicant emailed Ms Jones alleging that no consultation had 
occurred, and stating that the Respondent had not provided her with any suitable 
redeployment opportunities. On 24 March 2017, Ms Jones emailed the Applicant and advised 
her that she was unable to be redeployed, and accordingly her employment would be 
terminated.

[38] The Respondent submitted that it would have been unreasonable, given the available
roles, to redeploy the Applicant into an identified position on the same terms and 
remuneration as her previous position. The Respondent submitted that it had done all that 
was, “reasonably practicable to identify and explore all redeployment opportunities across 
Australia and within its business.”24

[39] At the Hearing, it was put to the Applicant during cross-examination that several of 
the positions identified by the Applicant as redeployment opportunities were inappropriate, 
given the Applicant’s training and qualifications. The Respondent referred to a sample of the 

                                               
23 Statement of Shalyn Jones declared 22 May 2017 at [52].
24 Submissions of the Respondent dated 25 May 2017 at [63].








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positions identified by the Applicant,25 of which the Applicant conceded that she lacked the 
necessary training or experience. These positions included: Housing Manager; HSE 
Specialist; HSEQ Coordinator; HSE 7/11 Advisor; Property Administrator; Sourcing 
Manager, Food & Beverage; Personal Logistics Coordinator; Funding and Development 
Manager; and Catering Manager, PwC.

[40] The Respondent provided reasons as to the Applicant’s unsuitability for these
positions, based on the qualifications and experience required for the roles, being different to 
that of the Applicant. The position of Property Administrator, was referred to by Counsel for 
the Applicant as a position capable of being performed by the Applicant. In relation to this 
position, it was put to the Applicant that it was an, “unsuitable position”, to which the 
Applicant responded, “I think I could upskill for that.”26

[41] The Respondent argued the position required experience dealing with real estate 
matters; negotiating, managing and interpreting tenancy agreements; and that “upskilling” the 
Applicant to meet the requirements for the role could not be achieved within a reasonable 
timeframe. In particular, it was submitted that the Applicant would be required to complete 
six “property management modules”, and that this would take up to 12 months to complete.27

It was submitted that it would be unreasonable, to hold the position open for that period of 
time.28

[42] In the months leading up the Applicant’s dismissal, the Respondent had secured 
contract extensions with Rio Tinto, to provide services at various worksites. The Applicant, in 
her correspondence sent to Ms Jones, had made reference to those contract extensions.

[43] The Respondent submitted that it would have been unreasonable to redeploy the 
Applicant into those positions as Rio Tinto had expressly excluded the Applicant from 
accessing its worksites (as Ms Jones provided in her statement).29 The Applicant disputed the 
factual basis on which Rio Tinto had excluded her from its worksites, however this provided 
an impediment to placing the Applicant, in alternative positions at these sites.

[44] The Respondent argued that the situation was not dissimilar to the circumstances in
Pettifer v MODEC Management Services Pty Ltd, where it was found that the capacity to 
enter a worksite, was essential to the capacity to work, and that this was a relevant 
consideration when determining, the reasonableness of the redeployment and whether there 
was a valid reason for dismissal.30

[45] The Respondent submitted that the evidence of Mr Purves and Ms Jones was more 
responsive and accurate on the issue of the redeployment, in relation to the available 
positions, and that their evidence should be preferred over the evidence of the Applicant.

[46] It was submitted that, whilst the Sodexo Remote Sites Onshore Enterprise Agreement 
2013 (the Agreement) applies to the Respondent’s onshore business, the positions of Project 

                                               
25 Respondent’s Outline of Closing Submissions dated 13 July 2017 at [60].
26 Transcript dated 5 July 2017 at PN388.
27 Respondent’s Outline of Closing Submissions dated 13 July 2017 at [66].
28 Ibid; Wilson v Mackay Taxi Holdings Ltd [2014] FWC 2425.
29 Statement of Shalyn Jones declared 22 May 2017 at [68].
30 [2016] FWCFB 5243 at [33].








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Manager and Relief Project Manager are not explicitly provided in cl.11 of the Agreement. It 
was therefore submitted by the Respondent, that the Applicant’s employment was not covered 
by the Agreement. Similarly, the Respondent submitted that the position also fell outside of 
the classifications in the Hospitality Industry (General) Award 2010 (the Award).

[47] The Respondent submitted that the consultation obligations in the Act only arise where 
the Applicant’s employment was governed by a relevant enterprise agreement or modern 
award. Accordingly, it was submitted that, as the Applicant’s position fell outside of the 
classifications in the Agreement and the Award, there was no obligation to consult about the 
redundancy. Nonetheless, the Respondent argued that it had met its consultation obligations.

[48] Whilst this submission has been taken into consideration, the case law sets out relevant 
obligations for consultation.  These considerations are set out later in this Decision.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[49] The Applicant commenced employment with the Respondent on 5 November 2006. 
The Applicant had been employed across a range of roles with the Respondent. In an early 
position referred to as “domestic”, she was required to travel to the Respondent’s “Arnhem 
Village” worksite in Gove, Northern Territory, where she would perform various 
housekeeping duties.31 Arnhem Village provided accommodation for construction workers 
employed by the mining company, Alcan (now Rio Tinto Alcan).

[50] In 2008, the Applicant was transferred to the position of “Administration Officer”, and 
promoted to “Administration Manager” later that year.32 In December 2008, the Applicant 
was promoted to the position of “Relief Manager” at Arnhem Village. Whilst the term “relief” 
was used to describe this position, the Applicant was permanently employed at Arnhem 
Village.33 The Applicant’s usual duties included: performing the duties of Housekeeping 
Manager, performing the duties of Accommodation Manager, and covering shifts on the front 
counter at the worksite.34

[51] In 2008, Alcan sold its mining operations to Rio Tinto, and Arnhem Village was 
amalgamated with another village, Gove House. The Applicant began working across both 
worksites, and her position title was changed to “Relief Project Manager”.35 In 2010, the 
Applicant was appointed to the position of “Project Manager of Gove House”.36

[52] In 2011, the Applicant was appointed to the “relief circuit” in the position of “Relief 
Assistant Project Manager/Administration”.37 Between 2011 and 2012, whilst assigned to the 
relief circuit, the Applicant worked on various worksites operated by the Respondent, 
including: Weipa Depot, Ernest Henry, George Fisher, North Goonyella, Dysart, Tanami and 
Dalby Stayover.38

                                               
31 Statutory Declaration of Deborah Hallam declared 15 June at [2].
32 Ibid at [3] – [4].
33 Ibid at [5].
34 Ibid.
35 Ibid at [6].
36 Ibid at [7].
37 Ibid at [8].
38 Ibid.








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[53] In 2013, the Applicant was appointed to the role of “Project Manager” at Dalby 
Stayover. From 2014 to 2015, the Applicant worked in various positions for the Respondent, 
including “Accommodation Clerk” and “Accommodation Manager”, at various sites around 
Australia.39 From December 2015, until the time of her dismissal on 24 March 2017, the 
Applicant was employed in the position of “Relief Project Manager” at the Respondent’s 
Weipa site. The Applicant was based in Mareeba, and undertook her duties on a fly-in fly-out 
basis. However, as previously noted, the Applicant had not been rostered to work since 
September 2016.40

[54] At the time of the dismissal, the Applicant’s remuneration was approximately 
$93,372.00 per annum. The evidence was that the Applicant had received the applicable 
notice of the termination of her employment, and redundancy payments, however at a very 
late stage, on her evidence. She argued the redundancy consultation and redeployment were 
deficient.

[55] At the Hearing, Counsel for the Applicant emphasised the application of s.389(2) of 
the Act, that is, whether it was reasonable, in all the circumstances, to redeploy the 
applicant.41 The Applicant referred to the decision of the Full Bench in Ulan Coal Mines 
Limited v Honeysett and Ors,42 where it was held that:

“[26] First, s.389(2) must be seen in its full context. It only applies when there has been 
a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the 
dismissal was a genuine redundancy. In other words, if the dismissal is a case of 
genuine redundancy the employer has a complete defence to the application. Section 
389(2) places a limitation on the employer’s capacity to mount such a defence. The 
defence is not available if it would have been reasonable to redeploy the employee. 
The exclusion poses a hypothetical question which must be answered by reference to 
all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for 
an employee dismissed by one employer to be redeployed within the establishment of 
another employer which is an entity associated with the first employer. It follows that 
an employer cannot succeed in a submission that redeployment would not have been 
reasonable merely because it would have involved redeployment to an associated 
entity. Whether such redeployment would have been reasonable will depend on the 
circumstances. The degree of managerial integration between the different entities is 
likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been 
reasonable, is to be applied at the time of the dismissal. If an employee dismissed for 
redundancy obtains employment within an associated entity of the employer some 
time after the termination, that fact may be relevant in deciding whether redeployment 
would have been reasonable. But it is not determinative. The question remains whether 
redeployment within the employer’s enterprise or the enterprise of an associated entity 

                                               
39 Ibid at [10].
40 Ibid at [17].
41 Transcript dated 14 July at PN25.
42 [2010] FWAFB 7578.








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would have been reasonable at the time of dismissal. In answering that question 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.”

[56] Counsel for the Applicant, referred to the decision of the Full Bench in Technical and 
Further Education Commission T/A TAFE NSW v Pykett,43 where the Full Bench quoted 
obiter also from the decision in Honeysett (referred to above): 

“[33] The Full Bench went on to make some obiter remarks about the operation of 
s.389(2):

“It may be appropriate to make some concluding remarks about the operation 
of s 389(2). It is an essential part of the concept of redeployment under s 
389(2)(a) that a redundant employee be placed in another job in the employer’s 
enterprise as an alternative to termination of employment. Of course the job 
must be suitable, in the sense that the employee should have the skills and 
competence required to perform it to the required standard either immediately 
or with a reasonable period of retraining. Other considerations may be relevant 
such as the location of the job and the remuneration attaching to it. Where an 
employer decides that, rather than fill a vacancy by redeploying an employee 
into a suitable job in its own enterprise, it will advertise the vacancy and 
require the employee to compete with other applicants, it might subsequently 
be found that the resulting dismissal is not a case of genuine redundancy. This 
is because it would have been reasonable to redeploy the employee into the 
vacancy. In such a case the exception in s 385(d) would not apply and the 
dismissed employee would have the opportunity to have their application for a 
remedy heard. The outcome of that application would depend upon a number 
of other considerations.

Where an employer is part of a group of associated entities which are all 
subject to overall managerial control by one member of the group, similar 
considerations are relevant. This seems to us to be a necessary implication 
arising from the terms of s 389(2)(b). While each case will depend on what 
would have been reasonable in the circumstances, subjecting a redundant 
employee to a competitive process for an advertised vacancy in an associated 
entity may lead to the conclusion that the employee was not genuinely 
redundant.”

[57] The Applicant argued that Pykett was authority for the redeployment process.44 The 
Applicant, in her second Statutory Declaration, set out various positions that she considered 
she would be able to perform, with either minimal or no additional training. She made 
particular reference to the positions of: Relief Project/Camp Manager, Training Coordinator, 
Accounts Payable Officer, Sourcing Manager, Funding and Development Administrator, HSE 
Advisor, Fuels and Warranty Manager, Finance Administrator, Assistant Manager – Uniform 
Shop, General Administrator, Accounts Administrator, Catering Manager, Finance Shared 

                                               
43 [2014] FWCFB 714.
44 Transcript dated 14 July at PN149.








[2017] FWC 4105

13

Services Manager, Site Administrator/Supervisor, Property Administrator, Office Services 
Supervisor, HSEQ Supervisor, Accounts Receivable Officer, Functions Coordinator, Housing 
Manager, Contracts Administrator, Assistant Catering Manager, Personnel Logistics 
Coordinator, Facilities Manager, Site Manager – Corporate, Facility Coordinator, HR 
Administrator, Village Manager and HSEQ Coordinator.45 The Applicant stated that, “[h]ad I 
known about these positions… I would have sought more information about them…”46

[58] The Applicant particularly argued she was able to satisfy all the requirements of the 
Property Administrator position. In addition, during cross-examination, Ms Jones conceded 
that the Applicant, “…with her skills and a bit of training, she would have been able to 
[perform all of the main duties].”47

[59] The Applicant’s representative was critical of the redeployment exercise, stating that 
the Applicant was not able to fully assess an alternative position, as not all of the relevant 
information was provided. The list did not set out whether the job was worked on a fly-in fly-
out basis, whether relocation expenses were paid and the applicable salary and qualifications 
for each position. It was also argued that the fact that the Applicant was not provided with 
detailed job descriptions for each position was a relevant consideration. It was submitted that 
at various times the Applicant requested information about the positions, including in an 
email to Ms Jones sent two days before the termination of her employment, in which the 
Applicant stated, “[n]ow let's talk job opportunities, the listing sent with the letter were out of 
date when they arrived, even out of date when you emailed the letter as they are updated 
weekly from what I understand (emailed 10.30pm 2/3/17 and letter arrived 9/3/17) and then 
nothing sent until I emailed on 16th March because you had not answered my email, then 
soon after you emailed current jobs listing.”48

[60] During cross-examination, Ms Jones stated that the email sent by the Applicant was 
not connected to the previous discussions she had with the Applicant. It was Ms Jones’ 
evidence that the Applicant had not expressed any desire to explore redeployment 
opportunities, prior to that email. Further, Ms Jones stated that the email was part of a chain, 
in which Ms Jones had provided a list of current vacancies within the Respondent’s business.

[61] The Applicant submitted that the Respondent did not discuss the identified positions 
with the Applicant as it had alleged. Further, it was submitted that, “the Respondent simply 
decided that the Applicant would not accept redeployment to a lower paid position in 
circumstances where the possibility has not been fully disclosed with the Applicant.”49 In the 
alternative, the Applicant submitted that merely making the Applicant aware of any vacancies 
would not discharge its redeployment obligations.50

[62] The Applicant submitted that a failure to offer or redeploy into a suitable position, 
even an identified lower level position, may render the redundancy not genuine.51 It was 

                                               
45 Statutory Declaration of Deborah Hallam dated 3 July 2017 at Annexure A.
46 Ibid at [7].
47 Transcript dated 5 July at PN970.
48 Applicant’s “Response to Sodexo Form F3 Response to Unfair Dismissal Application” dated 25 May 2017 at Annexure 27.
49 Submissions of the Applicant dated 16 June 2017 at [29].
50 See Howarth and Ors v Ulan Coal Mines Limited [2010] FWA 4817 at [41].
51 McLeod v Alcyone Resources [2014] FWCFB 1542 at [32]; Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] 

FWAFB 9137 at [28] – [29].








[2017] FWC 4105

14

submitted that, on the Respondent’s own submissions, there were identified positions to 
which the Applicant may have been redeployed. The Applicant also considered that given the 
size of the Respondent’s enterprise and operations, her experience and the period of time 
between the decision to restructure being made and the redundancy taking effect, it would 
have been reasonable for the Respondent to commence redeployment as early as November or 
December 2016, when the decision to terminate was made.

[63] The Applicant specifically referred to the Respondent advertising for positions of 
Village and Camp Managers in November 2016, a position which the Applicant had worked 
in the previous months. Further, it was submitted that, “[t]he sheer number of positions 
turned over in a twelve month period meant that the Respondent ought to have known that it 
quite easily had the capacity to absorb the Applicant into another position.”52

[64] The Applicant also submitted that the Commission should favour the evidence of the 
Applicant, over that of Mr Purves and Ms Jones, as the Applicant’s evidence, was 
straightforward and focused on the relevant alternative positions.53

CONSIDERATION

[65] The Applicant alleged that the termination of her employment from the Respondent 
was harsh, unjust or unreasonable. The Respondent raised a jurisdictional objection to the 
application, stating that the dismissal was a case of genuine redundancy. It is noted, that 
whilst this Decision does not concern the merits of the substantive application (only the 
jurisdictional objection) the only reason for the dismissal provided by the Respondent, was 
that it was a case of redundancy.

[66] As stated, the jurisdictional objection must first be determined prior to considering the 
merits of the application.54 The requirements for establishing that a dismissal was a case of 
genuine redundancy are set out in s.389 of the Act, as follows:

s.389(1)(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

[67] It was not contested, that the Applicant’s job of “Relief Project Manager” was no 
longer required, as a result of removing the relief pools.

[68] In his evidence, Mr Purves linked the redundancies to the operational changes and that 
the retention of operating the relief pools was an, “inefficient and costly labour management 
process.” In August 2016, the Respondent developed the plan to terminate the relief pools and 
outsource its labour requirements, to labour hire companies. It was not disputed that the 
restructure represented a significant financial advantage for the Respondent. As a result, the 
Applicant’s duties were redistributed amongst the Respondent’s existing staff and labour hire 
employees.55

                                               
52 Applicant’s Brief Outline of Oral Submissions filed 14 July 2017 at [3(e)(ii)].
53 Transcript dated 14 July at PN35.
54 Fair Work Act 2009 (Cth) s.396.
55 Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].








[2017] FWC 4105

15

[69] The evidence of Mr Purves in relation to the commercial advantages of the decision, 
was uncontested, and accordingly, was accepted. It was not relevant that some of the 
Applicant’s duties, were redistributed to the existing managers at the Respondent’s sites,56 the 
test is whether the Applicant’s position survived the restructure,57 and on the evidence, it did 
not.

[70] The Respondent satisfied the criteria that the Applicant’s job was no longer required to 
be performed by anyone.

s.389(1)(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

[71] In relation to considering the consultation obligations under the Agreement, whilst 
cl.11 does not name Relief Project Manager as a relevant position, the list of positions is not 
exhaustive.58 Further, the duties performed by the Applicant, had similarities to some of the 
duties of various positions explicitly identified. 

[72] Clause 11 of the Agreement states:

“11. CLASSIFICATIONS

Employees will be employed at the following levels as determined by the Company:

Level Hospitality and Facility 
Management Stream

Facility Maintenance 
Stream

Typical positions & duties of position.
1 Typically. includes positions 

requiring at least an AQF 
Certificate IV or equivalent 
skill gained through 
experience, such as:

 Catering Manager
 Head Chef
 Executive Chef

Facility Maintainer 1: 
Typically includes positions 
requiring at least an AQF 
Certificate IV or equivalent 
skill gained through 
experience, such as:

 Highly skilled building 
and related maintenance 
tradespersons with post 
trade qualifications, 
demonstrable capacity to 
repair and maintain 
complex equipment or 
systems; or cross trade 
qualifications (includes 
Plumber, Gas Fitter, 
Electrician, Refrigeration 

                                               
56 Johnston v Blue Circle Southern Cement Pty Ltd [2010] FWA 5149 at [48].
57 Ulan Coal Mine Limited v Howarth & Ors [2010] FWAFB 3488.
58 See The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447; Automotive, 

Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers 

Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114].








[2017] FWC 4105

16

Mechanic/Air 
Conditional Mechanic, 
Carpenter).

2 Typically includes positions 
requiring at least an AQF 
Certificate III or equivalent 
skill gained through 
experience, such as:

 Qualified Chef
 Breakfast Chef
 Second Chef
 Administration Manager
 Accommodation Manager
 Bar Manager/ Tavern 

Manager
 Security Supervisor
 Parks and Gardens 

Manager
 Airport Manager
 Village Services Manager
 Cleaning Manager
 Reporting Officer
 Warehouse Manager
 Horticulturalist
 Airport Refuelling 

Officer
 Airport Reporting Officer

Facility Maintainer 2: 
Typically includes positions 
requiring at least an AQF
Certificate III or equivalent 
skill gained through 
experience, such as:

 Base qualified building 
and related maintenance 
tradespersons (includes 
but not limited to Water 
Treatment Plant Operator, 
Sewage Treatment Plant 
Operator)

…”

[73] On the basis that the Applicant’s employment was covered by the Agreement, and the 
consultation obligations in the Agreement, were required to be observed by the Respondent, 
the case of Ulan Coal Mine Limited v Howarth & Ors is relevant to the required 
consultation:59

“[31] We do not consider, in the particular circumstances of the present matter and 
having regard to the obligation under sub-clause 23.1 of the Agreement, that a further 
round of discussions was required to be held by the Company with the employees to be 
dismissed, either separately or as a group. This does not mean that such separate 
discussions might not be worthwhile and appropriate e.g. as part of the consideration 
of measures to mitigate the adverse affects of terminations or to ensure that 
opportunities for other employment and assistance are properly examined. However 
they are not part of the discussions envisaged and required under sub-clause 23.1 of the 
Agreement and that is the test in these particular circumstances. In different 

                                               
59 [2010] FWAFB 3488.








[2017] FWC 4105

17

circumstances this will of course vary according to the terms of particular awards and 
agreements.”60

[74] It is noted, however that the Applicant did not seek to rely on a failure to consult as to 
the operational decision, as grounds to dismiss the jurisdictional objection. The Applicant’s 
submissions relating to consultation and mitigation, were made in reference to the 
“reasonableness” element of s.389(2), in relation to redeployment. The Applicant’s 
representative noted the time lag between when the decision was made to approve the strategy 
to remove the relief pools, and when the employees were told, and how it impacted on the 
redeployment process. The Applicant argued that if the employees had been notified or 
consulted at an earlier stage, jobs that were available at an earlier time (than when they were 
notified) could have been isolated for the redeployment exercise.

[75] Consideration has been given to the processes engaged in by the Respondent, to 
consult with the Applicant, regarding the redundancy decision.

s.389(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

[76] The Applicant submitted that it would have been reasonable in all the circumstances to 
redeploy the Applicant. In summary, the Applicant submitted that given that the decision to 
make the Applicant redundant was made in either November or December 2016, it would 
have been reasonable for the Respondent to begin quarantining positions for redeployment at 
that time (at an earlier stage when the proposal was under consideration), or at the very least 
notify the Applicant, in a timely manner, that her position was to be made redundant, in order 
that she had the longest opportunity to gain alternative employment. Further, it was submitted 
that there were several identified positions (including that of Property Administrator) that the 
Applicant was capable of being redeployed into; and that during the redeployment period, the 
Respondent did not make reasonable attempts to consider or assist redeployment of the 
Applicant.

[77] In relation to s.389(2), the decision of Stickley & Ors v  Kestrel Coal Pty Ltd is 
relevant,61 where the Full Bench of the Commission held that:

“[13] Under the heading “Considerations and Conclusion” the Commissioner 
sequentially considered the elements of the definition of genuine redundancy in s.389. 
Some factors, such as work chosen to be performed by contractors, were relevant to s. 
389(1)(a) and s. 389(2)(a). Insofar as the work of contractors is concerned, the appeal 
only relates to the finding with respect to s.389(2)(a). In that respect the Commissioner 
said:

“[182] With respect to s.389(2)(a) “reasonable in all the circumstances for the 
person to be redeployed within the employer’s enterprise”, and whether the 
Applicants could have been reasonably redeployed into the Respondent’s 
enterprise, it is not accepted that the Respondent had an obligation to redeploy 

                                               
60 Ibid at [31]; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services 

Union of Australia v QR Limited [2013] FWCFB 10165 at [44].
61 [2015] FWCFB 4760.








[2017] FWC 4105

18

the Applicant into a “backfill position” filled by Mastermyne employees. The 
timing of this project, and the short-term engagement of the project are relevant 
considerations, as is the Respondent’s prerogative to structure their workforce 
on the optimum, operational and flexible basis for their business.

[183] The roles in the organisational structure were not being recruited for, and 
while only the Applicant’s names had been deleted from the structure, it is 
accepted that the jobs no longer existed, and therefore, the job, position or 
work were not available for redeployment to, for the Applicants.”

[14] In this passage the Commissioner was applying the relevant element of the 
definition. The language used to summarise the requirement varied from the language 
in the section. In no case was there any ‘obligation’ in a legal sense to employ 
employees in roles filled by employees of the contractor. However, this passage must 
be considered in the context of the decision as a whole. Properly understood, in our 
view, the Commissioner was expressing a conclusion in relation to the reasonableness 
of continuing to employ persons to perform the work that had become work of 
contractors. The Commissioner did not state that work being performed by contractors 
was irrelevant to that process. Indeed the Commissioner expressly considered those 
circumstances.

[15] In our view, the considerations leading to the ultimate conclusion regarding the 
work of the contractor’s employees were all properly considered and taken into 
account. We are not persuaded that the discretion was improperly exercised or that 
there were any significant errors in the findings of fact. The facts and circumstances 
were considered by the Commissioner to be relevant circumstances in making the 
requisite overall judgment. The decision does not apply a binding principle that 
s.389(2)(a) has no application in relation to the work of contractors.”62

[78] In further considering the redeployment obligations, the Full Bench of the 
Commission in Technical and Further Education Commission T/A TAFE NSW,63 held that:

“[25] The word ‘redeployed’ should be given its ordinary and natural meaning. The 
ordinary meaning of the word ‘redeploy’ includes:

“Move (troops, workers, material etc) from one area of activity to another, 
reorganise for greater effectiveness; transfer to another job, task or function.” 

[26] The Explanatory Memorandum to what is now s.389(2) is in the following terms:

“1551. Subclause 389(2) provides that a 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, or within the 
enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person 
to be redeployed. For instance, the employer could be a small business 

                                               
62 Ibid at [13] – [15].
63 [2014] FWCFB 714.








[2017] FWC 4105

19

employer where there is no opportunity for redeployment or there may be no 
positions available for which the employee has suitable qualifications or 
experience.”

…

[34] Honeysett is authority for the proposition that for the purpose of s.389(2) it is 
sufficient if the Commission identifies a suitable job or position to which the 
dismissed employee could be redeployed. The Commission must then determine 
whether such a redeployment was reasonable in all the circumstances. We note that 
given the factual context the Full Bench in Honeysett did not need to consider whether 
s.389(2) may be satisfied if the dismissed employee could be redeployed to perform 
other work within the employer’s enterprise (or that of an associated entity.) Given its 
particular factual circumstances Honeysett is not authority for the proposition that it is 
always necessary to identify a particular job or position to which the dismissed 
employee could have been redeployed.

[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 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”. 64 (emphasis in original and footnotes omitted)

[79] At the Hearing on 5 July 2017, the Respondent objected to the admission of the further 
statement of the Applicant dated 3 July 2017. The statement was filed in response to 
documents obtained as a result of an Order to Produce, issued late in the proceedings. The 
Order to Produce sought, “[d]ocuments showing positions vacant within the Respondent’s 
enterprise, or the enterprise of a related entity of the Respondent, at any time between 1 
August 2016 to 12 April 2017.”

[80] The further statement was admitted into evidence on the basis that the evidence was of 
probative value, and in the interests of fairness. The Respondent was on notice, as a result of 
the Order to Produce and the fact that it was in possession the underlying material, and that 
the material would be raised at the Hearing, in relation to the legislative tests, to determine
whether there were any positions suitable for redeployment.

[81] The Applicant held a Diploma of Management and a Certificate III in Business 
Administration that had been sponsored by the Respondent,65 and she had been employed in a 
range of roles across ten years. The Applicant’s representative referred to a number of 

                                               
64 Ibid at [25] – [26], [34] – [35].
65 Transcript dated 5 July 2017 at PN268.








[2017] FWC 4105

20

positions on the list capable of being performed by the Applicant. In particular, the Applicant 
referred to the positions of: Relief Project/Camp Manager, Training Coordinator, Accounts 
Payable Officer, Sourcing Manager, Funding and Development Administrator, HSE Advisor, 
Fuels and Warranty Manager, Finance Administrator, Assistant Manager – Uniform Shop, 
General Administrator, Accounts Administrator, Catering Manager, Finance Shared Services 
Manager, Site Administrator/Supervisor, Property Administrator, Office Services Supervisor, 
HSEQ Supervisor, Accounts Receivable Officer, Functions Coordinator, Housing Manager, 
Contracts Administrator, Assistant Catering Manager, Personnel Logistics Coordinator, 
Facilities Manager, Site Manager – Corporate, Facility Coordinator, HR Administrator, 
Village Manager and HSEQ Coordinator.66

[82] A number of positions were raised in cross-examination with the Applicant. The 
Respondent, referred to a range of the positions relied on by the Applicant. Particular mention 
was made of the positions of Housing Manager; HSE Specialist; HSEQ Coordinator; HSE 
7/11 Advisor; Property Administrator; Sourcing Manager, Food & Beverage; Personal 
Logistics Coordinator; Funding and Development Manager; and Catering Manager, PwC. The 
Respondent submitted various references to the transcript of proceedings, where the Applicant 
conceded she did not, at the time, possess the necessary qualifications or experience to be 
redeployed into those specific positions.67

[83] For example, in relation to the position of Housing Manager, the Applicant conceded 
she did not possess any of the required qualifications, and that it would not be a suitable 
position for redeployment, stating that, “I’ve made these choices based on the summary, 
realising that maybe with some up training I could get a real estate licence, but now seeing 
the job description, no.”68 The Applicant made similar concessions in relation to the positions 
of HSC Specialist,69 HSC Advisor 7/11,70 and HSEQ Coordinator.71

[84] The Respondent also submitted that several of the positions identified by the 
Applicant, appeared on the national vacancy lists provided to the Applicant, and that she did 
not express an interest in those positions, at that time.72

[85] The Respondent made significant reference to the fact that the Applicant was not 
required to “apply” for any positions. However, the Applicant stated that the list of available 
roles she was given provided insufficient detail to make an expression of interest. However, 
on receiving an expression of interest, all that deal was then provided. Furthermore, she 
significantly criticised the process, on the basis that Ms Jones had not responded to her when 
she stated she would and therefore, the Applicant lost a period of time that could have been 
devoted to the redeployment process. Knowledge of all of the matters were within the 
Respondent’s domain and there was a clear expectation that the Applicant would consider any 
of the alternative positions. The Respondent had been on notice of such, given the Applicant 
sough an Order to Produce, for these vacancies.

                                               
66 Statutory Declaration of Deborah Hallam dated 3 July 2017 at Annexure A.
67 Respondent’s Submissions for Closing Statement dated 13 July 2017 at [60].
68 Transcript dated 5 July 2017 at PN346 – PN347.
69 Ibid at PN357.
70 Ibid at PN379.
71 Ibid.
72 Respondent’s Submissions for Closing Statement dated 13 July 2017 at [33].








[2017] FWC 4105

21

[86] The Respondent submitted that: 

“As reasons outlined in the above, the Respondent submits that redeployment period 
was between 24 February 2017 and time of dismissal, 24 March 2017. There were no 
contractual obligations binding the Respondent to a defined period of redeployment. In 
fact, the Sodexo Career Listings opened vacancies up to the Applicant from 8 March 
2017 to the Applicant’s dismissal date. The Commission should not turn its mind to 
any period outside this window.”73

[87] The test is whether it would have been “reasonable” in the circumstances to redeploy 
the Applicant, having regard whether the time spent exploring redeployment opportunities 
was reasonable (among other considerations), rather than whether there was a contractual 
obligation to spend a specified period of time exploring redeployment options. 

[88] In the circumstances, given that the decision to make the Applicant redundant was 
made in, at the latest, December 2016, it would have been reasonable to commence exploring 
redeployment opportunities with the Applicant in late December 2016, or at the latest, early 
January 2017. The Applicant was not notified of the redundancy until late February 2017 (or 
early March 2017 on the Applicant’s submissions), and the Respondent only allocated a 
period of some three weeks to explore redeployment opportunities. The Applicant had 
become aware of the redundancies when another employee received a redundancy letter. The 
Applicant, after querying such, received her redundancy advice much later.

[89] Mr Purves in his evidence, stated that it would not have been reasonable to quarantine
those positions that appeared on the vacancy list earlier, as the Respondent would be required 
to move employees and would, “…still have to fulfil the requirements of the contract, so we 
would have to find labour from elsewhere which would presumably be agency labour which 
adds to our cost base and also means that those roles are filled by individuals who may not 
have the same experience and competency levels as the relief pool employees.”74

[90] The Respondent’s submissions were that the Applicant did not express an interest to 
be redeployed to be particular job, during the relevant period. Ms Jones gave evidence that, in 
the weeks during the redeployment process, the Applicant was difficult to contact and would 
not return telephone messages, and that she did receive numerous emails from the Applicant 
during this period. However, Ms Jones emphasised that the purpose of the correspondence, 
had been for the Applicant to gain access to employment records, rather than to discuss 
redeployment opportunities. 

[91] The Respondent alleged that the Applicant did not, during the entire redeployment 
period, engage meaningfully in the redeployment process, with the view of maximising her 
prospects of being redeployed. However, during the redeployment period, Ms Jones was out 
of the country, on a different time zone, and out of reception for a fair period of the 
redeployment period. There is clear and uncontested evidence, that the Applicant generally 
sought to be redeployed. For example, the email to Ms Jones dated 22 March 2017, which 
was not answered by the Respondent, that stated, “[n]ow let's talk job opportunities, the 
listing sent with the letter were out of date when they arrived, even out of date when you 
emailed the letter as they are updated weekly from what I understand (emailed 10.30pm 

                                               
73 Ibid at [55].
74 Transcript dated 5 July 2017 at PN916.








[2017] FWC 4105

22

2/3/17 and letter arrived 9/3/17) and then nothing sent until I emailed on 16th March because 
you had not answered my email, then soon after you emailed current jobs listing.”75

[92] As stated, Ms Jones was unable to be contacted for at least six days during the 
redeployment period. Taking all of the facts and circumstances into account, the Respondent’s 
obligation to mitigate the redundancy by offering a proper redeployment process, was 
procedurally deficient, in some respects, as set out. The Respondent erred in merely relying 
on the Applicant to navigate the redeployment process. The list of jobs provided as the basis 
for the redeployment exercise, did not provide sufficient relevant information, for the 
Applicant to decide whether she sought the position, but it did provide a basis for the 
Applicant to express an interest in a position, and then full details were provided. The 
Applicant indicated she had responsibility for her son and resided in Mareeba, and therefore 
required sufficient detail on the location, remuneration, whether it was fly-in fly-out, who 
paid for the flights, availability of relocation costs and or rental assistance.

[93] In relation to the limitations placed on the available positions for redeployment, it was 
the evidence of the Applicant that she had been told that she was no longer welcome on Rio 
Tinto’s Weipa site, and accordingly the Respondent submitted that she could not be 
redeployed to positions on those sites, due to the client’s decision. These matters of exclusion 
from worksites have been considered as performance issues. The recent decision of
Tasmanian Ports Corporation Pty Ltd v Gee,76 is relevant to the Applicant’s circumstances,
wherein she was restricted from entering worksites. The Full Bench held:

“[27] It is critical to the determination of grounds 1-4 of Tasports’ appeal to identify the 
ratio decidendi of the Full Bench decision in Pettifer. The facts of that matter were that 
Mr Pettifer was employed by a labour hire company, Modec Management Services Pty 
Ltd, and had been assigned to work for BHP Billiton Petroleum Inc. (BHPB) to 
perform work upon a floating production, storage and offloading vessel. After a “near 
miss” incident, BHPB directed Modec to remove Mr Pettifer from the vessel. This 
direction was made pursuant to a right possessed by BHPB under a term of the labour 
supply contract between it and Modec. That right was expressed in the following terms 
(the “Company” being BHPB and the “Contractor” being Modec):

“The Company Representative may direct the Contractor to have removed from 
the Site or from any activity connected with the work under the Contract, 
within such time as a Company Representative reasonably directs, any 
subcontractor or person employed in connection with the work under the 
contract, whose involvement the company representative considers not to be in 
the best interests of the project.

The costs associated with removing such persons shall be borne by the 
Contractor. The person shall not be employed elsewhere on the Site or on 
activities connected with the work under the Contract without the prior written 
approval of the Company. Within a reasonable period of time those person who 
have been removed from the work under the Contract shall be replaced at the 
expense of the Contractor if the Company so requires by other suitable 
qualified persons Approved by the Company.”

                                               
75 Applicant’s “Response to Sodexo Form F3 Response to Unfair Dismissal Application” dated 25 May 2017 at Annexure 27.
76 [2017] FWCFB 1714.








[2017] FWC 4105

23

[28] Modec did not agree that Mr Pettifer’s conduct justified his removal from the 
vessel, but was nonetheless obliged to comply with BHPB’s direction in accordance 
with the above contractual provision. Modec endeavoured to find alternative work for 
Mr Pettifer, which included consideration of local and international employment 
opportunities and discussions with Mr Pettifer’s union to explore alternative roles, and 
Mr Pettifer was retained in employment while this occurred. It was ultimately 
concluded that there was no suitable alternative role for him. Mr Pettifer was given an 
opportunity to respond to this conclusion. He was ultimately dismissed on the basis 
that Modec had no suitable role for him to perform. Modec did not seek to justify the 
dismissal by reference to any aspect of Mr Pettifer’s conduct.

[29] Mr Pettifer applied to the Commission for an unfair dismissal remedy. In the 
decision at first instance, it was concluded that s.387(a) did not arise for consideration 
because Modec did not rely on any matter related to the applicant’s capacity or 
conduct as a reason for the dismissal. Notwithstanding this, the dismissal was found 
not to be unfair, essentially on the basis that there was no practical alternative by 
which Mr Pettifer could have been retained in employment.

[30] Mr Pettifer appealed on the basis that the conclusion that s.387(a) did not arise for 
consideration was in error, and contended in the appeal that his dismissal occurred 
because of the allegation of misconduct levelled against him by BHBP. The Full 
Bench rejected the proposition that Modec dismissed Mr Pettifer on the basis of any 
consideration as to his conduct. However, the Full Bench determined that his dismissal 
was capacity-related, and that the Commissioner erred by not considering this under 
s.387(a). The Full Bench said:

“[32] We have concluded that the BHPB instruction that Mr Pettifer was not 
permitted to work on the BHPB Site represented a matter which went to Mr 
Pettifer’s capacity to work. Consequently, it was a matter that required 
consideration pursuant to subsection 387(a) to determine whether or not it was 
a valid reason for the termination of his employment. It has long been 
established that the Commission is required to consider and reach conclusions 
about each of the factors specified in section 387...

[33] Consequently we have concluded that the Commissioner was in error in 
her conclusion that the circumstances of the termination of Mr Pettifer’s 
employment did not give rise to valid reason considerations. Mr Pettifer’s 
incapacity to work on the BHPB Site arose directly from the BHPB prohibition 
on his returning to work on that site, as distinct from any dispute over his 
conduct. As a consequence, Mr Pettifer was incapable of working on the BHPB 
Site in a manner which was akin to a bar or the loss of a form of licence, 
essential to his capacity to work. Hence Mr Pettifer’s capacity was a factor 
which required a conclusion in terms of whether it represented a valid reason 
for the termination of his employment.”

[31] Having found error in the respect identified, the Full Bench proceeded to re-
determine Mr Pettifer’s unfair dismissal remedy application. In relation to s.387(a), the 
Full Bench referred to the contractual provision earlier quoted, and said (footnotes 
omitted):








[2017] FWC 4105

24

“[37] MODEC was therefore contractually obliged to remove Mr Pettifer from 
the BHPB Site if instructed to do so. This was the role which Mr Pettifer was 
employed to perform. No longer capable of performing the inherent functions 
of this role, MODEC sought to find alternative employment for Mr Pettifer. 
Only after exhausting these inquiries did MODEC rely on this reason to 
terminate Mr Pettifer’s employment. In these circumstances the Full Bench is 
satisfied that MODEC had a valid reason relating to Mr Pettifer’s capacity to 
terminate his employment and only exercised this reason because it genuinely 
was unable to find suitable alternative employment for him.

[38] We have considered Mr Pettifer’s position in the context of the 
conclusions reached by Deputy President Asbury in Adecco.

[39] In that matter the Deputy President observed that:

‘[71] I accept that the Adecco, by virtue of its contract with Nestlé for the 
supply of labour, may have been required to remove Ms Kool from the 
Nestlé site when it was requested to do so. I was not assisted by the 
failure of Adecco to call any direct evidence about the terms of its 
contract with Nestlé for the supply of labour and the rights of Nestlé to 
seek to remove labour hire employees from its site.’

[40] The factual situation before the Deputy President was somewhat different 
to Mr Pettifer’s circumstances. In that case, the Deputy President did not have 
the terms of the contractual relationship between the labour hire company and 
the host employer in evidence before her. Some of her comments in that 
context might well be considered to be, at their highest, a general statement of 
principle. That principle is that, in the context of labour hire arrangements, the 
actions of an employer who dismisses an employee following the exercise of a 
host employer’s contractual right to have the employee removed from the host 
site cannot rely exclusively on the actions of that third party as their defence to 
a claim of unfair dismissal. A discretion remains with the FWC to decide 
whether a particular dismissal is unfair in all the circumstances.

[41] In the Adecco case, Deputy President Asbury found that a failure on 
behalf of the applicant’s employer to explore redeployment opportunities for 
the applicant constituted an element of unfairness in the circumstances of the 
applicant’s dismissal. In this case, there is no contest that MODEC did explore 
redeployment opportunities for Mr Pettifer both prior to his termination and 
afterwards, including liaising with his union to explore the opportunity of 
substitution. In this respect, we would also observe that there is absolutely 
nothing to suggest that MODEC colluded with its client to remove Mr Pettifer 
from the work site.

[42] Having determined that there was a valid reason for Mr Pettifer’s
dismissal related to his capacity it is necessary to make findings in relation to 
sub-sections 387(b)-(h) as part of our re-determination of the matter.”








[2017] FWC 4105

25

[32] The Full Bench went on to deal with paragraphs (b)-(h) of s.387 and ultimately 
came to the same conclusion as that at first instance, namely that the dismissal was not 
unfair.”77 (footnotes omitted)

[94] The Respondent in the current matter, did not rely on the reasons relied on the 
exclusion by Rio Tinto to terminate the Applicant’s employment, and indeed those reasons 
are not before the Commission. However, regard has been had to the inability for the 
Applicant to be redeployed to the Rio Tinto sites, in considering the redeployment process. 
The client’s decision to exclude the Applicant from these sites, provided a limitation on the 
offer of positions for redeployment.

[95] The Respondent is a significantly large international company and therefore, the 
processes engaged in are put under heightened scrutiny. It is recognised that this is a case 
where a long serving employee, who had worked in a variety of roles, and who was employed 
for an extended period of time, when her position was made redundant.  Accordingly, at the 
time of formulating the process of eliminating the relief pool operations, there was a 
requirement on the Respondent, as part of this new operational strategy, to consider the 
mitigation of the effects of the redundancies and which roles current employees may have 
been able to be redeployed to.

[96] There was no evidence that this was done until a much later stage when the Applicant 
was notified that the decision was taken. The available window between the approval of the 
decision in November or December 2016 and the communication of the decision in February 
2017was not used to the advantage of the employees, to provide a longer lead time to consider 
redeployment options.

[97] Having said that, in assessing the available alternative jobs, on the evidence of the 
parties regarding the specific requirements of the roles, the Applicant would have required a 
period of, “up skilling,” in terms of obtaining further qualifications.

[98] Mr Edwards submitted that the Applicant did not possess the necessary experience or 
qualifications to be redeployed into any of the identified positions. In relation to the sample of 
positions tendered by the Respondent, the relevant qualifications for those positions included: 
Certificate IV Training and Assessment (Personnel Logistics Coordinator); Diploma in 
Occupational Health and Safety (HSE Manager); a diploma in a hospitality related discipline 
(Assistant Catering Manager); Bachelor Degree in Business (Catering Manager – PwC); 
tertiary qualifications in strategic sourcing/procurement (Sourcing Manager – Food and 
Beverage); Property Management Registration (Housing Manager); Property Management 
Registration (Property Administrator); and Certificate IV in Occupational Health and Safety 
(HSEQ Coordinator).78

[99] In relation to the particular focus on the Property Administrator position, Mr Haddrick 
stated, “…it is the only other particular position that we say you have rolled gold evidence in 
front of the Commission... then it becomes a question of fact for this Commission to decide
whether it was a position that’s reasonable for her to be [redeployed].”79

                                               
77 Transcript dated 5 July 2017 at [27] – [32].
78 Exhibit 3.
79 Transcript dated 14 July 2017 at PN142 – PN146.








[2017] FWC 4105

26

[100] Mr Haddrick, went on to state:

“Ms Jones accepted that she thought that Ms Hallam could do all 22 of the 22 identified 
main responsibilities in the position.  At its absolute worst for Ms Hallam, there might 
be some further training required to assist in undertaking the role, but the role was 
there, ready, open for her.  She identified that she could do it and if that opportunity 
had been given to Ms Hallam she could have been considered to be redeployed in that 
position…”80

[101] Whilst Mr Haddrick established, through the cross-examination of Ms Jones, that the 
Applicant possessed the necessary skills to perform the “duties” identified on the position 
description for the Property Administrator position, it was also established that she did not 
possess the necessary qualifications and experience at that time. This was conceded by the 
Applicant during cross-examination.81 The role of Property Administrator required “Property 
Management Registration,” as set out in the position description, which required the 
Applicant to complete six learning modules.

[102] It is not sufficient that the Applicant would be able to perform some of the duties of 
the position, given she lacked the necessary qualifications. Accordingly, the Property 
Administrator position was not suitable for redeployment to at the time. 

[103] In considering whether it would have been reasonable to hold the position open to 
allow Applicant to obtain Property Management Registration, Mr Edwards submitted this 
would have taken 12 months. In Wilson v Mackay Taxi Holdings Ltd,82 Simpson C held that:

“[33] Even on the Applicants own best case there is a reasonable prospect that the 
Applicant will not hold the qualification attached to the new role for 6 months. I do not 
regard such a length of time as reasonable in all of the circumstances. Further while 
there was speculation that the Applicant may have been eligible for government 
funding to assist in meeting the costs of her undertaking the Certificate IV training, the 
fact is no such application had been made at the time of termination.

…

[35] For the reasons set out above I am satisfied it was not unreasonable for the 
Respondent to have advertised for the new position in order to engage an employee 
who held the qualification the position required instead of redeploying the Applicant 
into the Bookkeeper position.”83

[104] The evidence of the Respondent is accepted on the time to obtain the qualification, and 
accordingly, it would have been unreasonable to hold the position open for 12 months, whilst 
the Applicant obtained registration.

                                               
80 Ibid at PN146.
81 Ibid at PN384 – PN387.
82 [2014] FWC 2425.
83 Ibid at [33], [35].








[2017] FWC 4105

27

[105] On the evidence, it would have been reasonable in the circumstances, for the 
Respondent to engage in consultation at an earlier time, quarantine positions, and extend the 
length of the redeployment period.

[106] However, the relevant test is whether it would have been reasonable, in all the 
circumstances, to redeploy the Applicant. The process required both parties to engage in the 
redeployment exercise. The positions advanced by the Applicant as prospective options for 
redeployment, were established on the evidence to be unsuitable, based on the Applicant’s 
qualifications and experience at the time of the redundancy. Further, it would not have been 
reasonable to hold the positions open for a relatively lengthy period, whilst the Applicant 
gained the relevant qualifications.

[107] The Full Bench in Technical and Further Education Commission (t/as TAFE NSW) v 
Pykett,84 established that procedural deficiencies with a redeployment process, are alone not 
sufficient to find that a dismissal was not a case of genuine redundancy:

“[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…”85

(emphasis added)

[108] On the facts, there was no identified position within the Respondent’s operation, or its 
associated entities’ enterprises where it would have been reasonable to redeploy the 
Applicant.86

CONCLUSION

[109] Having regard to the matters outlined above, and in particular the requirements of 
s.389(2) of the Act, the Respondent has satisfied that the termination of the Applicant’s 
employment was a case of genuine redundancy.

[110] Having stated this, the Respondent is a significant employer and it would have been 
reasonable for the Respondent to notify the Applicant of the redundancy, at an earlier date, 
and commence exploring redeployment opportunities at that time. It would also have been 
reasonable to properly consult with the Applicant, regarding the requirements of specific 
positions identified as possible avenues for redeployment, and provide all relevant 
information with the group of positions at the earliest stage. Whilst these are noted as 
deficiencies, the evidence does not confirm that there would have been a different 
redeployment outcome, in the circumstances where the Respondent was changing its 
operations.

[111] However, the Applicant was also requested to express interest in positions. The 
Respondent argued that the Applicant had been confrontational during the redeployment 

                                               
84 [2014] FWCFB 714.
85 Ibid at [40].
86 Ibid at [36], [40].








[2017] FWC 4105

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process, and was not reasonably proactive or responsive during the redeployment period. It 
may have been appropriate to adapt the procedures to account for the periods where there 
were lapses in communication between the parties. Expanding the period or commencing 
redeployment consultation earlier, and providing a full list of potential alternative jobs with 
sufficient information for the Applicant to express relevant interest, may have accommodated 
this.

[112] However, this does not overcome the case that there was not a suitable position, within 
the Respondent’s or its associated entities’ enterprises, that the Applicant could have been 
reasonably redeployed to. Accordingly, despite the identified procedural deficiencies, they are 
not considered to be fatal to the Respondent’s procedure, and the jurisdictional objection must 
be upheld. Consultation was engaged in, and a reasonable redeployment exercise occurred. 
An alternative position was not available on the evidence, and therefore, it was not reasonable 
in the circumstances to redeploy the Applicant.

[113] Having taken into account all of the facts and circumstances, against the legislative 
tests, the dismissal is considered to be a case of genuine redundancy, in accordance with s.387 
of the Act. The substantive application made pursuant to s.394 of the Act is therefore, 
dismissed.

[114] I Order accordingly.

COMMISSIONER

Appearances:

Mr. R.W. Haddrick of Counsel, instructed by Ms. A. Langtree of Preston Law for the 
Applicant.

Mr. S. Edwards for the Respondent.

Hearing details:

5 and 14 July 2017.

Brisbane.

Printed by authority of the Commonwealth Government Printer

Price code G, PR595135


WORK ISSION THE FAIR THE SEAL

Cases cited by this decision: