[2020] FWC 5952

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

Mr Omara Khaddaj
v
ACS Property Services
(U2020/10263)

DEPUTY PRESIDENT MASSON MELBOURNE, 11 NOVEMBER 2020

Application for an unfair dismissal remedy - jurisdictional objection – genuine redundancy –

objection upheld – application dismissed.

[1] On 28 July 2020, Mr Omara Khaddaj (the Applicant) made an application to the Fair
Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act)
for a remedy, alleging that he had been unfairly dismissed from his employment with ACS
Property Services (the Respondent) on 8 July 2020. By way of remedy the Applicant seeks an
order for compensation.

[2] The Respondent raised a jurisdictional objection to the application on the grounds that
the termination was a genuine redundancy. Conciliation of the matter before the Commission
was unsuccessful and the matter was listed for hearing/conference before me in respect of
both the jurisdictional objection and merits on 10 November 2020. Both parties filed material
in advance of the hearing/conference in accordance with the directions issued.

[3] At a Mention/Directions Hearing conducted on 10 September 2020 submissions were

sought from the parties as to whether the Commission should conduct either a conference
(s.398) or a hearing (s.399) in relation to the matter. Considering there were only 2 witnesses
and the parties wishes it was decided to set the matter down for a Determinative Conference
on 10 November 2020.

[4] At the conference the Applicant was self-represented and gave evidence himself while
the Respondent was represented by Mr L. Igini, the Managing Director of the Respondent,
who also gave evidence.

Background and Evidence

[5] The Respondent is a Melbourne based company that provides cleaning, maintenance
and facility management services and at the date of the Applicant’s dismissal employed 316
staff.1 Mr Igini gave evidence that there were no associated entities although the Respondent

1
Form F3 Employer Response, Question 1.7

1
 [2020] FWC 5952

was currently developing a new business to be known as ACS Indigenous, which will seek to
engage and promote employment opportunities for indigenous workers.

[6] The Applicant commenced employment with the Respondent on 24 September 2019
in the position of Marketing Coordinator and was engaged on an annual salary of $65,000
plus superannuation. 2 A Position Summary was set out in a Position Description (PD) which
was an Annexure to his Contract for Services (the Agreement)3 which relevantly states as
follows;

“Position Summary:

Market and communicate our services by developing and implementing marketing and
advertising campaigns; tracking sales data; maintaining promotional materials
inventory; planning meetings and trade shows; maintaining databases; preparing
reports and assisting with tender bids and presentations.

Acting as the first line of sales to source relationships with new customers and key
decision makers to develop business opportunities for the sales reps to meet sales
targets. You will be responsible for representing and communicating the company’s
brand to the outside world and grow the ACS brand. To lead and drive the overall
marketing, media communications and strategic roadmap.

You are to analyse the market, competitors and industry trends and drive strategies for
increasing awareness of the company's services among the target audience group.

You are to identify sales leads, pitch services to new clients and maintain a good
working relationship with new contacts.

………………………..”

[7] The Applicant’s duties and responsibilities were also set out in the PD at Annexure 1.
His key responsibilities were as follows;

 Communicate the company’s vision and positioning statement to external and

internal stakeholders.
 Assist the sales team in preparing and responding to tender responses.
 Implements marketing and advertising campaigns by assembling and analysing
sales forecasts; preparing marketing and advertising strategies, plans, and
objectives; planning and organising promotional presentations; updating
calendars.
 Prepares marketing reports by collecting, analysing, and summarising sales data.
 Keeps promotional materials ready by coordinating requirements with graphic
agencies; inventorying stock; placing orders; verifying receipt.
 Supports sales staff by providing sales data, market trends, forecasts, account
analyses, new service information; relaying customer services requests.

2
Exhibit A2, Contract for Services between Mr Omara Khaddaj and ACS Property Services dated 19 September
3
Ibid, Annexure 1

2
 [2020] FWC 5952

 Plans meetings and trade shows by identifying, assembling, and coordinating

requirements; establishing contacts; developing schedules and assignments;
coordinating mailing lists.
 Monitors budgets by comparing and analysing actual results with plans and
forecasts.
 Updates job knowledge by participating in educational opportunities; reading
trade publications.
 Accomplishes organization goals by accepting ownership for accomplishing new
and different requests; exploring opportunities to add value to job
accomplishments.
 Implement and drive the organisations marketing strategy
 Oversee and manage the marketing content for the company’s digital platforms
including, Website, social media, white papers etc.
 Event management- develop a plan and roadmap for the next 12 to 24 months
including industry breakfasts, advocates dinner, and other social events.
 Prepare marketing presentation4

[8] The Applicants “Smart Goals” on which his performance was assessed was also set
out in the Agreement and comprised 5 goals which were equally weighted (20%) and were as
follows;

1. Increase our net promoter score (NPS) by 25% each quarter

2. Social Media Posts (min 4pcm)
3. Develop and run technical breakfast seminars on key industry topics (4 pa)
4. Create content for the customer and staff e-newsletter (x1 e-newsletter per item
per QTR).
5. Marketing ROI (The target min is 3 times on the investment).5

[9] Both the Applicant and Mr Igini agreed during their giving of evidence that the
Position Description was an accurate reflection of the duties and responsibilities of the role.

[10] Mr Igini gave evidence that he met with the Applicant via a Zoom meeting on 19 June
2020 during which meeting he advised the Applicant that he was considering the termination
of the Applicant’s employment on the basis of redundancy. A follow-up telephone
conversation with the Applicant took place on 21 June 2020. Mr Igini says that after
considering the views of the Applicant he decided to proceed with the dismissal and
confirmed the decision in a letter to the Applicant dated 25 June 2020.6 The dismissal took
effect from 8 July 2020. The termination letter relevantly stated as follows in relation to the
reasons for the dismissal;

“Dear Omara

Termination of your employment by reason of redundancy

4
Ibid, Annexure 1
5
Ibid
6
Exhibit A6, Letter of Termination dated 25 June 2020

3
 [2020] FWC 5952

The purpose of this letter is to confirm the outcome of a recent review by ACS
Property Services (the employer) of its operational requirements, and what this means
for you. As a result of change in our organisational structure post COVID-19,
including the cancellation of trade shows & other customer events for FY20-FY22,
reduced marketing budget for FY21, slow conversion rate and the uncertainty within
the Australian Economy the position of the Marketing Co-Ordinator is no longer
required. Regrettably, this means your employment will terminate. This decision is not
a reflection on your performance. Based on your length of service, your notice period
is two weeks. Therefore, your employment will end on 8/7/2020.

………………”7

[11] On 14 July 2020, following his dismissal taking effect, the Applicant met with Mr
Igini during which meeting the Applicant advanced alternatives to his dismissal for Mr Igini’s
consideration, including altering his job description to fit with evolving business needs,
working reduced hours and contracting to the Respondent on a “freelance basis” in respect of
work previously undertaken by him as an employee. The Applicant took issue with the fact
that Mr Igini failed to meet with him until 14 July 2020 in respect of the decision to make him
redundant. Mr Igini attributed his inability to meet face to face with the Applicant to the
Victorian State government restrictions and the Respondent’s own business restrictions during
the pandemic.

[12] Mr Igini gave evidence in respect of the reasons for the Applicant’s dismissal. He
states that the Applicant’s role was no longer required and that some of the tasks formerly
undertaken by the Applicant had been divided up between other remaining staff. A major
driver of the reduced work required was that of the cancellation of trade show and customer
events. A small volume of the balance of the work, that being public relations and social
media content, had been contracted out to an external public relations firm. In support of the
decision made to dismiss the Applicant on grounds of redundancy, Mr Igini referred to the
impact that the Covid 19 pandemic had had on the Respondent’s business during 2020, which
included;

 Trade shows and promotional events, for which the Applicant was responsible for
coordinating, had been cancelled;
 Reduced marketing budget;
 Sales department staff were now working only 3 days per week;
 3 other employees had been made redundant;
 A reduction in sales had been experienced;
 The Applicant’s hours of work had been reduced in the April-June 2020 period to 25
hours per week;
 The Respondent was forced to seek rent reductions as a consequence of the revenue
decline8; and
 The conversion rate of new business had slowed and was well below budget.

[13] The Applicant disagreed that his role was no longer required and said that marketing
campaigns were still active as evidenced by ongoing social media campaigns, email

7
Ibid
8
Exhibit R6, Letter dated 29 April 2020 regarding turnover reduction

4
 [2020] FWC 5952

campaigns and website updates by the Respondent. He accepted that there had been
reductions in both the budget and promotional/marketing events but that work (events
coordination) was a small component of his overall duties, making up only 10% of his
workload whereas Mr Igini estimated it represented up to 70% of the Applicant’s workload.
The Applicant also referred to other duties which he says still exist which he had been
undertaking whilst employed, including marketing activities, email campaigns, business
response to Covid 19 and supporting the development of a new business division to be known
as ACS Indigenous. The Applicant also says that while there were no live promotional events
during the pandemic restrictions there was the potential to conduct virtual events. He further
says that ACS was less affected than other businesses during the pandemic as it was involved
in commercial and industrial cleaning, demand for which services remain.

[14] With respect to promotional events Mr Igini says that there had been no promotional
or industry events during the period of pandemic restrictions, be that live or virtual. Regarding
the Respondent’s new business development, ACS Indigenous, he gave evidence that there
are currently no employees in that new division, it is in the start-up phase, hasn’t yet gone to
market and is being currently managed by 2 partners of the Respondent.

[15] Mr Igini gave further evidence in respect of some of the outsourced work formerly
undertaken by the Applicant. He says that the skillset he was looking for was in the area of
public relations (PR) and while he accepted there was some overlap, he still distinguished the
PR skillset from the marketing skillset possessed by the Applicant. The Applicant disagreed
with Mr Igini’s characterisation of the PR and marketing skillsets as being different and
challenged Mr Igini as to whether it was reasonable in the circumstances to say he didn’t have
the required skillset when he had been doing the role when employed by the Respondent. Mr
Igini in reply described that he was looking for more journalism-based skills through
outsourcing the work. He also noted that the volume of work being undertaken by the external
PR consultant was approximately 8 hours per week.

[16] The Applicant also referred to other roles that had been filled in the period in which he
was made redundant. He cited an Operations Coordinator role and also a Human Resources
(HR) role. With respect to the Operations Coordinator role Mr Igini said the role was not a
new role and the individual concerned had simply returned from a period of stand-down that
had been in place during the pandemic restrictions. The Applicant acknowledged that he
would not have sought to displace that other employee returning to their role.

[17] As regards the HR role, Mr Igini says that the Respondent had not had a HR
professional within the business until recently and had been seeking to recruit one for some
time. He says that the pandemic had created an opportunity to recruit a high calibre HR
practitioner with some 18 years’ experience across multiple well-regarded Australian
companies. Mr Igini also gave unchallenged evidence that at the time of the Applicant’s
dismissal there were no other vacant roles that the Applicant was suited to.

Has the Applicant been dismissed?

[18] A threshold issue to determine is whether the Applicant has been dismissed from his
employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or

5
 [2020] FWC 5952

(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.

[19] Section 386(2) of the Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant. There was no dispute and I find that the
Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

[20] Under section 396 of the Act, the Commission is obliged to decide the following
matters before considering the merits of the application:

(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; and

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[21] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect. It is not contested that the Applicant was dismissed from his employment with
effect from 8 July 2020 and made the application on 28 July 2020. I am therefore satisfied
that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

[22] Section 382 of the Act provides that a person is protected from unfair dismissal if, at
the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or
her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if
any) worked out in relation to the person in accordance with the
regulations, is less than the high income threshold.

6
 [2020] FWC 5952

Minimum employment period

[23] It was not in dispute and I find that the Respondent is not a small business employer,
employing 316 staff at the time of the Applicant’s dismissal. Further, the Applicant was an
employee, who commenced his employment with the Respondent on 24 September 2019 and
was dismissed with effect on 8 July 2020, a period in excess of 6 months.

[24] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee
who had completed a period of employment with the Respondent of at least the minimum
employment period of 6 months which applies.

Applicant’s annual rate of earnings

[25] It was not contested that the Applicant’s annual salary at the date of his dismissal was
$65,000. It follows and I am satisfied that, at the time of dismissal, the sum of the Applicant’s
annual rate of earnings (being $65,000) together with such other amounts worked out in
accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high
income threshold, which, for a dismissal taking effect on or after 1 July 2020, is $153,600.

[26] I am therefore satisfied that, at the time of dismissal, the Applicant was a person
protected from unfair dismissal.

Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the
dismissal?

[27] Section 388 of the FW Act provides that a person’s dismissal was consistent with the
Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a
small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.

[28] As mentioned above, I find that the Respondent was not a small business employer
within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14
employees (including casual employees employed on a regular and systematic basis). I am
therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the
Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

[29] Section.389 of the FW Act, defines a genuine redundancy in the following terms:

“(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

7
 [2020] FWC 5952

(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.”

Was the Applicant’s job no longer required - s 389(1)(a)?

[30] I turn first to consider whether the Respondent no longer required the Applicant’s job
to be performed by anyone because of the operational requirements of the Respondent.

[31] A Full bench considered the meaning of the term “genuine redundancy” in Ulan Coal
Mines Limited v Henry John Howarth and others9 (Ulan) and relevantly stated as follows:

[17] It is noted that the reference in the statutory expression is to a person’s “job” no
longer being required to be performed. As Ryan J observed in Jones v Department of
Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties
and responsibilities entrusted, as part of the scheme of the employees’ organisation, to
a particular employee” (at p. 308). His Honour in that case considered a set of
circumstances where an employer might rearrange the organisational structure by
breaking up the collection of functions, duties and responsibilities attached to a single
position and distributing them among the holders of other positions, including newly-
created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the

holder of the former position has, after the re-organisation, any duties left to
discharge. If there is no longer any function or duty to be performed by that
person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed
by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation
(2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum
illustrate circumstances where tasks and duties of a particular employee continue to
be performed by other employees but nevertheless the “job” of that employee no
longer exists.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd Hamberger SDP considered whether a
dismissal resulting from the restructure of a supervisory team was a case of genuine
redundancy. As a result of the restructure, four supervisory team leader positions were
replaced by three team leader positions. The Senior Deputy President said:

9
[2010] FWAFB 3488.

8
 [2020] FWC 5952

“When one looks at the specific duties performed by the applicant prior to her
termination they have much in common with those of two of the new positions
in the new structure. The test is not however whether the duties survive.
Paragraph 1548 of the explanatory memorandum makes clear that it can still
be a ‘genuine redundancy’ where the duties of a previous job persist but are
redistributed to other positions. The test is whether the job previously
performed by the applicant still exists.” 10(references omitted)

[32] It follows from the Full Bench’s reasoning in Ulan and the summary of relevant cases
cited in their decision that:

(i) A job is a collection of functions, duties and responsibilities assigned to a

particular employee within an organisation;

(ii) The functions, duties and responsibilities may cease to be part of an

employee’s job through a reorganisation or redistribution of duties;

(iii) Should there no longer be any functions or duties to be performed by a

particular employee, then his or her job ceases to exist;

(iv) The fact that the tasks and duties previously performed by an employee may
have survived and been reallocated to other employees through a restructure
does not mean the job is still required; and

(v) An employee’s dismissal may be a genuine redundancy even though

particular functions, duties and responsibilities previously performed by that
employee are being performed by other employees.

[33] The Applicant contends that the duties he previously performed are still required and
that while he accepts that the Covid 19 pandemic restrictions have impacted the marketing
budget and conduct of industry/marketing forums, his role still exists. He points in particular
to continued promotion of the Respondent’s business through online social media and website
campaigns and the outsourcing of particular aspects of his former role. The Respondent does
not resist the argument that functions, duties and responsibilities formerly assigned to the
Applicant have survived his departure. Those surviving duties have, according to Mr Igini,
been reallocated to other staff and to an external PR consultancy to which Mr Igini was
looking towards for a higher level of journalism-based support.

[34] The Applicant acknowledged that the marketing budget has been reduced during 2020
and that his hours of work had been substantially reduced in the period from April - June
2020 from 38 to 25 hours per week. It is also the case that a significant portion of the role has
not been required to be performed during 2020, that being the planning and coordination of
trade shows and other promotional events. The Applicant contends that this aspect of his role
required approximately 10% of his time whereas Mr Igini gave evidence that it was
approximately 70% of his time. Both the Applicant and Mr Igini were unconvincing in their
evidence and unhelpfully, neither led evidence as to the volume of pre-Covid activity in this
area of the Applicant’s work which would have assisted resolve the evidentiary contest.

10
Ibid at [17].

9
 [2020] FWC 5952

[35] I note that the Applicant’s Key Performance Measures, set out at [8] above, provides
for a 20% weighting to be applied to the assessment of the Applicant’s performance in respect
of the development and conduct of technical breakfasts on key industry topics. Such a
weighting suggests it is more than just a minor part of the Applicant’s role that he claims.
There is however no compelling evidence before me that it occupied 70% of the Applicant’s
time as contended by Mr Igini. If that were the case, then I would have expected to see a
much more significant reduction in the Applicant’s hours of work (from 38 to 25 hours per
week) then occurred in the April - June 2020 period. Nevertheless, I do accept that conduct of
industry/marketing forums has not been possible during 2020 due to the pandemic and that no
forums have been conducted in a live or virtual sense. I also find that while planning and
conduct of such forums constituted a substantial component of the role, it did not represent
the majority of the Applicant’s work.

[36] I am satisfied that the Respondent, in the face of the Covid pandemic’s impact on its
business, decided to restructure its organisation in respect of its marketing activities. I am
further satisfied that the decision was driven in large measure by reduced revenue, a
restriction on its ability to deliver face to face industry/marketing forums and Mr Igini’s
desire to engage external PR consultancy support in the area of public relations and social
media content management. Duties formerly undertaken by the Applicant have on Mr Igini’s
evidence survived and been reallocated to remaining staff. Additionally, as also previously
stated, the Respondent decided to outsource public relations and social media content
management to a PR consultant which is delivering in the order of 8 hours contracted work
per week. Furthermore, it was not argued by the Applicant that his former role been replaced
since his dismissal.

[37] It is clear that the functions, duties and responsibilities formerly assigned to the
Applicant have been redistributed both internally to other employees and externally to a PR
consultant. While some of the Applicant’s former duties are still required, his role is not. On
that basis I am satisfied that the Applicant’s role of Marketing Coordinator was no longer
required by the Respondent to be performed by anyone because of changes in the operational
requirements of the Respondent’s business.

Did the Respondent comply with any consultation obligations - s 389(1)(b)?

[38] Whether the Respondent was required to comply with particular consultation
obligations turns on whether the Applicant was covered in his employment by a modern
award or an enterprise agreement and such applicable modern award and/or enterprise
agreement contains consultation provisions. It is not in dispute that the Applicant was not
covered by an enterprise agreement and nor did either the Applicant or the Respondent
contend that the Applicant was covered by a modern award. However, the subjective opinion
of the parties as to whether a modern award covered the Applicant is irrelevant as the
application of a modern award is a matter of fact to be determined by the Commission.

[39] The Cleaning Services Award 202011 (the Award) covers the Respondent in respect of
its contract cleaning services and their employees who fall within the classifications defined at
Schedule A of the Award.12 A review of the classifications within the Award confirms that

11
MA000022
12
Ibid Clause 4 Coverage

10
 [2020] FWC 5952

there are no classifications within the Award that apply to the duties and responsibilities of
the role the Applicant occupied, that of Marketing Coordinator.

[40] In assessing the duties of the Applicant, I have also considered whether the Clerks -
Private Sector Award 202013 (the Clerks Award) may apply. Clause 4 Coverage in the Clerks
Award provides as follows;

“4.1 This occupational award covers:

(a) private sector employers throughout Australia in relation to employees

wholly or principally engaged in clerical work; and

(b) private sector employees who are wholly or principally engaged in clerical
work and who are employed by employers mentioned in clause 4.1(a).”

[41] While the Respondent is a private sector employer, I am unable to conclude that the
Applicant is engaged “wholly or principally” in clerical work. As set out at [6]-[8] above, the
role is a sales and marketing role and any clerical work involved was a minor part of the
Applicant’s duties.

[42] I turn now to consider whether the Applicant was covered in his employment by the
Miscellaneous Award 202014 (the Miscellaneous Award) the scope clause of which provides
as follows;

“4. Coverage

4.1 Subject to clauses 4.2, 4.3, 4.4 and 4.5 this award covers employers throughout
Australia and their employees in the classifications listed in clause 15—
Minimum rates who are not covered by any other modern award.

4.2 The award does not cover managerial employees and professional employees
such as accountants and finance, marketing, legal, human resources, public
relations and information technology specialists.

4.3 The award does not cover employees excluded from award coverage by the
Act.

4.4 The award does not cover employees who are covered by a modern enterprise
award, or an enterprise instrument (within the meaning of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or
employers in relation to those employees.

4.5 The award does not cover employees who are covered by a State reference
public sector modern award, or a State reference public sector transitional
award (within the meaning of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth)), or employers in relation to those
employees.

13
MA000002
14
MA000104

11
 [2020] FWC 5952

……………….”

[43] The Miscellaneous Award save for the exclusions detailed at sub-clauses 4.2 – 4.5,
covers employees who fall within the classifications structure at clause 12. I am satisfied
however that the Applicant is excluded from coverage by reason of falling into an excluded
profession as set out sub-clauses 4.2.

[44] It follows from the above that I am satisfied that the Applicant was not covered by a
modern award or enterprise agreement in his employment with the Respondent. Therefore s.
389(1)(b) does not apply so as to give rise to consultation obligations under a modern award
or enterprise agreement.

Would it have been reasonable to deploy the Applicant?

[45] I turn now to consider whether it would have been reasonable in all the circumstances
to redeploy the Applicant into another role.

[46] The Applicant identified two roles that had been filled during the period of his
dismissal, that being the Operations Coordinator and HR roles. While the Applicant
contended that he could have filled the Operations Coordinator role, Mr Igini’s unchallenged
evidence made clear that it was not a new role but a role to which an employee that had been
stood down during the pandemic restrictions had returned. The Applicant acknowledged that
he would not have wished to displace another employee returning to their role following a
period of stand down. I also accept that in relation to the HR role, the Respondent had been
seeking an experienced HR professional which they were successful in securing. There was
no evidence adduced, nor did the Applicant contend, that he had the necessary skills and
experience to fill that role.

[47] I accept and am satisfied on the basis of Mr Igini’s evidence, which the Applicant did
not rebut, that at the time of the Applicant’s dismissal there were no other suitable roles that
were available that it would have been reasonable in all the circumstances to transfer the
Applicant into. Nor were than any associated entities within which there were any suitable
roles to place the Applicant at the time of his dismissal.

Summary

[48] For all the reasons set out above I am comfortably satisfied that the Applicant’s
dismissal was a case of genuine redundancy because as at 8 July 2020:

(i) the Respondent no longer required the Applicant’s job to be performed by anyone
because of changes in the operational requirements of its enterprise;

(ii) the Applicant was not covered in his employment by a modern award or enterprise
agreement therefore the obligation for the Respondent to have complied with
particular consultation obligations does not arise; and

(iii) it would not have been reasonable in all the circumstances for the Applicant to be
redeployed within the Respondent’s enterprise or the enterprise of an associated
entity of the Respondent.

12
 [2020] FWC 5952

Conclusion

[49] The Applicant’s dismissal by the Respondent on 8 July 2020 was a case of genuine
redundancy within the meaning s 389 of the Act. Consequently, he has not been unfairly
dismissed. His application for an unfair dismissal remedy must therefore be dismissed.

[50] An order giving effect to the above will be separately issued.

DEPUTY PRESIDENT

Appearances:

O. Khaddaj on his own behalf

L. Igini for the Respondent

Hearing details:

2020
Tuesday
10 November

Printed by authority of the Commonwealth Government Printer

<PR724331>

13