1
Fair Work Act 2009
s.394—Unfair dismissal
Rebecca Ringuet
v
Bioworx Pty Ltd
(U2023/6955)
DEPUTY PRESIDENT LAKE BRISBANE, 5 FEBRUARY 2024
Application for an unfair dismissal remedy – jurisdictional objection raised – genuine
redundancy – consultation not consistent with Award – jurisdictional objection dismissed –
remedy for unfair dismissal – compensation awarded.
[1] Ms Rebecca Ringuet (the Applicant) made an application on 29 July 2023 seeking a
remedy for unfair dismissal from Bioworx Pty Ltd (the Respondent) under s.394 of the Fair
Work Act 2009 (the Act).
[2] The Applicant began her employment with the Respondent as an Administration
Assistant on 17 January 2022 and was made redundant on 14 July 2023. The Respondent raised
a jurisdictional objection that there was a genuine redundancy. The Applicant states that the
redundancy was not genuine as the Respondent did not comply with the consultation provisions
of the Clerks – Private Sector Award 2010.
[3] Directions were issued for the filing of material and listed the matter for Hearing on 20
December 2023 via Microsoft Teams. The Applicant was self-represented. Mr Glen Harvey
appeared for the Respondent.
[4] I have considered all the evidence and submissions in determining whether the dismissal
can be classified as a genuine redundancy. I provide my consideration below.
Was the Applicant’s dismissal a genuine redundancy under s.389 of the Act?
[5] Section 396 of the Act sets out a number of matters which the Commission must
consider before turning to the merits of an unfair dismissal application. It provides:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an
order under Division 4 before considering the merits of the application:
[2024] FWC 293
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 293
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(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[6] There must be consideration placed on whether the termination of the Applicant was a
genuine redundancy before considering the merits of the application.
[7] Section 389 of the Act defines genuine redundancy for the purposes of s.396 as follows:
“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.”
[8] The criteria under s.389 of the Act is considered below.
1. Did the Applicant’s employer no longer require the Applicant’s job to be performed by
anyone because of operational requirements of the employer’s enterprise?
[9] Where there is no longer any function or duty to be performed by an employee, his or
her position becomes redundant even where aspects of that employee’s duties are still being
performed by other employees.1
[10] Hamberger SDP considered the issues arising from restructuring or downsizing when
dealing with genuine redundancy in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt.2
The test is whether the previous job has survived the restructure or downsizing, rather than a
question as to whether the duties have survived in some form.
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[11] In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, the Full Bench
considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals
(1995) 60 IR 304 stating:
“[17] It is noted that the reference in the statutory expression is to a person’s “job” no
longer being required to be performed. As Ryan J observed in Jones v Department of
Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties
and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a
particular employee” (at p. 308). His Honour in that case considered a set of
circumstances where an employer might rearrange the organisational structure by
breaking up the collection of functions, duties and responsibilities attached to a single
position and distributing them among the holders of other positions, including newly-
created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder
of the former position has, after the re-organisation, any duties left to discharge.
If there is no longer any function or duty to be performed by that person, his or
her position becomes redundant…’ (at p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed
by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation
(2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum
illustrate circumstances where tasks and duties of a particular employee continue to be
performed by other employees but nevertheless the “job” of that employee no longer
exists.
[12] ‘Operational requirements’ is a broad term which encompasses present performance of
the business, the state of the market in which the business operates, steps to improve efficiency
by installing new processes/equipment/skills, by arranging labour to be used more productively
or the application of good management to the business.
[13] The Respondent provided the reason for redundancy as the “current economic climate,
and the resulting downturn in customer sales and revenue” which meant that the Applicant’s
position was no longer required. The Respondent submitted that it could no longer afford the
costs with its current staffing arrangements.
[14] At the hearing, Mr Harvey provided evidence of a significant downturn in sales of over
a period of 12 months which had necessitated the Applicant’s redundancy. The Applicant did
not dispute that the Respondent suffered a downturn and that there were legitimate operational
reasons for her dismissal.
[15] I am satisfied that the Respondent had no longer required the Applicant’s job to be
performed because of operational requirements.
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2. Did the Respondent comply with any obligations in a modern award or enterprise
agreement that applied to the employment to consult about redundancy?
[16] The obligation on an employer to consult about redundancy only arises when a modern
award or enterprise agreement applies to an employee and that modern award or enterprise
agreement contains requirements to consult about redundancy. There is no legislative
requirement to consult about the redundancy before a decision is made to make an employee
redundant.
[17] The Applicant was covered by the Clerks – Private Sector Award 2010 (the Clerks
Award). Clause 38 of the Clerks Award outlines the consultation requirements of employers
in relation to major workplace changes. The consultation requirements are as follows:
“38. Consultation about major workplace change
38.1 If an employer makes a definite decision to make major changes in production,
program, organisation, structure or technology that are likely to have significant
effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them
and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on
employees; and
(c) commence discussions as soon as practicable after a definite decision has
been made.
38.2 For the purposes of the discussion under clause 38.1(b), the employer must give
in writing to the affected employees and their representatives (if any) all relevant
information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
38.3 Clause 38.2 does not require an employer to disclose any confidential
information if its disclosure would be contrary to the employer’s interests.
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38.4 The employer must promptly consider any matters raised by the employees or
their representatives about the changes in the course of the discussion under
clause 38.1(b).
38.5 In clause 38 significant effects, on employees, includes any of the following:
(a) termination of employment
…
38.6 Where this award makes provision for alteration of any of the matters defined at
clause 38.5, such alteration is taken not to have significant effect.”
[18] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia v Vodafone Network Pty Ltd, Commissioner Smith stated
that consultation “is not perfunctory advice on what is about to happen”, and that it is instead
“providing the individual, or other relevant persons, with a bona fide opportunity to influence
the decision maker.”3
[19] In Sharma v GTS Australia Pty Ltd,4 I determined that the Applicant being told of his
redundancy by telephone call, and it was presented to him as a something that was already
happening was not proper consultation.5
[20] The Respondent submitted the decision to make the Administration Assistant position
redundant was made on 13 July 2023. On 14 July 2023, Mr Harvey met with the Applicant and
informed her that her role had been made redundant and her employment would be terminated.
The Respondent submitted that there was a “lengthy discussion” with the Applicant in relation
to the reasons for the redundancy.
[21] Clause 38.2 of the Clerks Award requires the employer to give information in writing
about relevant changes. Mr Harvey met with the Applicant and verbally discussed the
redundancy decision but did not put the matters in writing. While a termination letter was
provided to the Applicant on 14 July 2023, this was not for the purposes of consultation in
accordance with clause 38.1(b) and 38.2 of the Award.
[22] As a result, the Respondent did not comply with the proper consultation requirements
before the dismissal, and therefore was not a genuine redundancy under s.389 of the Act. The
Respondent’s jurisdictional objection that the dismissal was a case of genuine redundancy is
dismissed.
Small Business Fair Dismissal Code
[23] The Respondent raised a further jurisdictional objection on the basis that the dismissal
was consistent with the Small Business Fair Dismissal Code (the Code). The Respondent stated
it had 9 employees at the time of the Applicant’s dismissal and provided payroll records in
support of this. This was not disputed by the Applicant.
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[24] The Respondent is a small business employer, the Code only applies to dismissals based
on an employee’s conduct or capacity. 6 The Applicant’s dismissal was not based on her conduct
or capacity, but rather the Respondent’s operational requirements and the Code is not applicable
in this matter.
Was the dismissal harsh, unjust or reasonable?
[25] Section 387 of the Act provides the criteria and considerations the Commission must
take into account when deciding if the dismissal was harsh, unjust, or unreasonable. As required
by the Act, I consider the following:
(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
(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.
[26] The criteria is applicable to the extent they are relevant to the factual circumstances.7
(a) Whether there was a valid reason for the dismissal related to capacity or conduct; (b) (b)
whether the Applicant was notified of the reason for dismissal (c) Whether the Applicant was
given an opportunity to respond to any reason related to capacity or conduct
[27] To be a valid reason, the reason for the dismissal should be “sound, defensible or well
founded”8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 As summarised by
Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable
response to the relevant conduct or issue of capacity”.10 The Commission must consider the
entire factual matrix in determining whether an employee’s termination was for a valid reason.11
[28] The Respondent needed to make one of its three administrative positions redundant and
was substantiated through the financial information provided by the Respondent. The reason
for the Applicant’s dismissal was not related to her capacity or conduct. Therefore, the above
factors are not applicable.
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(d) Any unreasonable refusal by the Respondent to allow the Applicant to have a support
person present to assist at any discussions relating to the dismissal
[29] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person and is only relevant when an employee asks to have a support person
present in a discussion relating to dismissal and the employer unreasonably refuses.12
[30] The Respondent did not unreasonably refuse to allow the Applicant to have a support
person present during the meeting with Mr Harvey on 14 July 2023.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person
had been warned about that unsatisfactory performance before the dismissal
[31] The dismissal did not relate to any unsatisfactory performance by the Applicant.
(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
[32] The Respondent is a business of 9 employees at the time of the Applicant’s dismissal.
The Respondent did not have any internal human resource management specialists or expertise
which may have impacted the redundancy process.
(h) any other matters that the FWC considers relevant
[33] The Respondent had a genuine reason for redundancy and substantiated this reason after
assessing the financial performance of the business. The Applicant should have been provided
with the opportunity to be informed of the redundancy before this decision was made. It is
understandable in the Respondent’s view that as there was no other position that the Applicant
could be redeployed to, and the consultation process would have not changed the outcome.
However, the redundancy process is clear in the Award that the notice of consultation should
have been provided in writing.
[34] The failure to comply with the redundancy procedure does make the dismissal harsh,
unjust or unreasonable under s.387 of the Act.
Conclusion
[35] I am satisfied that the Applicant was unfairly dismissed as the Applicant was not
provided proper consultation on the redundancy. Therefore, the Applicant is entitled to remedy
under s.394 of the Act.
Remedy
[36] Given that the Applicant’s dismissal was unfair, it is necessary to consider the question
of remedy. Section 390 of the Act provides the following:
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“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see
Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.”
[37] Given the Respondent’s financial circumstances and that a role would not be available
to the Applicant, reinstatement is not an appropriate remedy that can be granted.
[38] Section 392 sets out the considerations for awarding compensation:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in
lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
[2024] FWC 293
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Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or humiliation,
or other analogous hurt, caused to the person by the manner of the person’s
dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken
to have been received by the employee for the period of leave in accordance
with the regulations.”
[39] The established approach to assessing compensation in unfair dismissal cases was set
out in Sprigg v Paul Licensed Festival Supermarket,13 and has been applied and developed by
Full Benches of the Commission in the context of the current Act.14
[40] The authorities indicate that assessing compensation involves a four-step process, noting
that the guidelines are not a substitute for the words in the Act:
“Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost). Furthermore, the length of service with the employer15 and the
ability to find a new role are relevant factors in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.16
Step 3: Discount the remaining amount for contingencies.17
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Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount they would have received if they had continued in their employment.”
Step 1: Estimate the remuneration the employee would have received, or have been likely to
have received, if the employer had not terminated the employment (remuneration
lost).
[41] Even if the Respondent appropriately consulted with the Applicant, the Respondent
would have still made the Applicant redundant based on the financial constraints of the
business. The Respondent only required a short period before dismissal to comply with the
redundancy process taking into account the Applicant’s short length of service.
[42] The Applicant would have remained employed for a further week while the Respondent
conducted the appropriate consultation process. The Applicant would have received a total of
$1,061.44 during this period. As the Applicant would have been employed, it is appropriate for
superannuation to be paid on this amount.
Step 2: Deduct monies earned since termination.
[43] During the hearing, the Applicant indicated that it was approximately 5-6 weeks
following her dismissal before she received income from other employment. There are no
applicable deductions under this step.
Step 3: Discount the remaining amount for contingencies.
[44] There are no applicable contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount
he or she would have received if they had continued in their employment.”
[45] In Bowden v Ottrey Homes Cobram and District Retirement Villages,18 the Full Bench
noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave
taxation for determination. I will leave the issue of taxation for determination for the
Respondent.
Order
[46] I recognise an issue of viability as the Respondent is a small business with financial
constraints. I have considered this in the timeline of when the compensation is to be paid to the
Applicant.
[47] The Respondent is ordered to pay the sum of $1,061.44 gross with 11% contributed to
superannuation within 30 calendar days on issuing this Decision to the Applicant’s nominated
bank account that was on payroll. I Order accordingly.
[2024] FWC 293
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DEPUTY PRESIDENT
Appearances:
R. Ringuet for the Applicant.
G. Harvey for the Respondent.
Hearing details:
20 December 2023.
Brisbane.
Hearing via Microsoft Teams.
Printed by authority of the Commonwealth Government Printer
PR770955
1 Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308
(Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488
(Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].
2 [2010] FWA 674.
3 PR911257 (AIRC, Smith C, 14 November 2001) at [25].
4 [2020] FWC 6556 at [19].
5 Ibid
6 Fair Work Act 2009 (Cth) ss.23(1), 388(2)(a).
7 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP,
Lacy SDP, Simmonds C, 21 March 2002) [69].
8 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
9 Ibid.
10 [2021] FWC 4 at 118.
11 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185,
[46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413
12 Explanatory Memorandum to Fair Work Bill 2008 at para. 1542
13 (1998) 88 IR 21.
14 Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939.
15 Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).
16 Ibid s392(2)(e)
17 Ibid s392(2)(a), (d) and (f).
18 [2013] FWCFB 431.
WORK COMMISSION TIRY THE SEAL,OF THE F
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb3488.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr911257.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc6556.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4185.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb7939.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
