Darrell Kay v Fulton Hogan Construction Pty Ltd - [2025] FWC 330

[2025] FWC 330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Darrell Kay
v

Fulton Hogan Construction Pty Ltd

(U2024/453)

DEPUTY PRESIDENT BUTLER

BRISBANE, 6 FEBRUARY 2025

Application for an unfair dismissal remedy

Fulton Hogan Construction Pty Ltd (Fulton Hogan Construction) is in the business of civil construction. It undertakes major civil infrastructure projects such as highways, bridges, airports, windfarms, ports, and dams. In early 2022 it started construction of a new two-lane rural highway to connect the Peak Downs Highway, west of Walkerston, to the Mackay Ring Road. This was known as “the Walkerston Bypass project.”
Mr Kay is a plumber by trade and previously had his own business as a plumbing contractor. In 2022 he took a job with Fulton Hogan as a Leading Hand. He started work in July 2022. He worked on the Walkerston Bypass project.
Mr Kay’s employment came to an end on 22 December 2023. The employer attributed the termination to redundancy. Mr Kay applied to the Fair Work Commission (the Commission)_for an unfair dismissal remedy. The employer opposes the application, and objects to it on the grounds that the employment came to an end because of genuine redundancy.
For the reasons set out below I have decided to dismiss Mr Kay’s application.

Background

Mr Kay commenced employment in July 2022, as a Leading Hand (Drainage). In or around March or April 2023 he moved into what is variously described as the “roads section,” “earthworks crew” or “earthworks scope of works,” also as a Leading Hand. The section’s supervisor was Mr Chris Smart.
On 30 November 2023 Mr Damian O’Connor, Superintendent, met with Mr Kay, and provided him with a letter titled “Notice of organisational change.” Mr O’Connor met with four other employees that day, in connection with redundancies.
The letter provided on 30 November 2023 advised that there were organisational changes to be made as a result of the project transitioning towards completion, and if there were no suitable roles available, Mr Kay’s employment would cease by way of redundancy.
Mr Kay said, in his witness statement, that Mr Forde called him on 5 December 2023 stating there was no more work. Mr Forde did not address this but was on notice of it via Mr Kay’s statement filed in advance of the Respondent’s materials. Mr Kay seemed to agree, under cross-examination, that he first spoke to Mr Forde on 11 December.
It seems that the employer had wanted to give notice of termination on 7 December 2023 but had not appreciated that Mr Kay was on a rostered day off on that date. Even though Mr Kay was on a rostered day off the employer tried to phone him, but did not reach him. Mr Nick Forde, Senior People & Culture Advisor, met with three of the other employees that day. The fifth was away sick.
It was common ground that on 11 December 2023, Mr Forde spoke to Mr Kay, by telephone, and confirmed that his role would be made redundant, and his employment would end.[1]
On 12 December 2023 Mr Forde emailed Mr Kay a letter titled “Notice of redundancy” dated 7 December 2023. That letter informed Mr Kay that his role had been made redundant, and purported to give two weeks’ notice of termination. The termination took effect on 22 December 2023. Mr Kay signed a copy of the letter to acknowledge receipt on 12 December 2023.
Mr Kay’s employment ended effective 22 December 2023.

Legislative framework

Part 3-2 of the Fair Work Act 2009 (Cth) (the Fair Work Act) provides for unfair dismissal remedies. It is not in issue that Mr Kay was a person “protected from unfair dismissal”,[2] and it was not in issue that the application was filed within the prescribed time. So, the issue is whether Mr Kay was unfairly dismissed.[3]
It was not in issue that Mr Kay was dismissed.[4] Nor did any party claim the Small Business Fair Dismissal Code applied.[5] I am satisfied of the matters in s 385 (a) and (c) of the Fair Work Act.
The employer objects on the ground that Mr Kay’s employment ended by way of genuine redundancy. If its objection is upheld that is the end of the matter.[6] This question has to be determined before considering the merits of Mr Kay’s application,[7] but this can be done in the same hearing (or determinative conference).[8]
“Genuine redundancy” has a particular meaning under the Fair Work Act. Section 389 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.
I will consider this further below.

This application

Mr Kay’s then paid agent filed this application on 11 January 2024. The parties did not resolve their dispute by conciliation. The matter was subsequently allocated to me to be determined. In anticipation of doing so, I issued Directions on 17 October 2024.
If there are contested facts the Commission has to hold a conference or hearing when determining the application.[9] I invited the parties to provide their views, if any, in their written submissions as to whether this application should be determined in what is referred to as a “determinative conference,” or at a hearing. The Respondent did not indicate a view in its submissions and Mr Kay wanted the matter to proceed by way of a hearing. Taking those matters into account, and after considering whether a hearing would be the most effective and efficient way to resolve the matter, I decided to proceed by way of a hearing.[10] The hearing was on 29 November 2024.
Mr Kay gave evidence on his own behalf. Mr Nick Forde and Mr Martin Roszka gave evidence on behalf of the Respondent. To the extent that I consider their evidence relevant I have dealt with it below.

Submissions

Mr Kay filed documents that were in effect combined statements and written submissions. His initial document containing his witness statement and submissions was filed on 1 November 2024. The Respondent filed its outline of submissions on 15 November 2024. In reply to the Respondent’s materials, Mr Kay filed a response to each of Mr Forde and Mr Roszka’s statements, each of which contained both assertions of fact, and arguments. He filed these documents on 20 November 2024. In light of his status as a self-represented layperson, I sought to discern arguments and allow for Mr Kay to adopt assertions of fact as his evidence-in-chief.
Some of Mr Kay’s submissions were not relevant to the questions that I need to decide and so I will not summarise them here.
Mr Kay argued that Mr O’Connor’s “mate” Mr Cruikshank went into Mr Kay’s position. If somebody was doing his job and carrying out his duties, then his position was not redundant. In addition, Mr O’Connor’s son worked on the project and did not have experience as a roller operator. To say Mr Kay was redundant was purely a cop out for Mr O’Connor to set up his mates and family with full-time work.
Mr Kay submits all duties still being carried out on the Walkerston Bypass Project at the time his submissions were filed fell within his scope of works and duties carried out during his employment.
Mr Kay also referred to others whose positions were not made redundant, pointing out they were temporary, or from Brisbane instead of local, or “international” instead of local, or lacked experience and a roller ticket. This implies he objects to his position being selected for redundancy when workers in these categories remained engaged. He also argued that selection for redundancy should be on the basis of last on, first off.
Mr Kay’s submissions also went to the loss he had suffered and to the compensation he was seeking.
In summary, Fulton Hogan Construction’s argument was that Mr Kay’s employment came to an end by way of genuine redundancy for the purposes of the Fair Work Act . It submitted Mr Cruikshank was not employed to replace Mr Kay, had been employed nearly three months prior to Mr Kay’s redundancy, and his role was different to Mr Kay’s role. In response to Mr Kay’s submissions about labour hire workers, the employer submitted that labour hire workers were engaged but did not replace Mr Kay in his role. It submitted it fairly selected redundancies,[11] and was not required to take a last on, first off approach.[12]
I have dealt with the parties’ submissions as necessary below.

Consideration

Did Mr Kay’s employment end because of genuine redundancy?

This requires consideration of the reason for the termination, compliance with relevant consultation procedures, and issues relating to redeployment.

Reason for the termination

The first issue is whether Fulton Hogan Construction no longer required Mr Kay’s job to be performed by anyone because of changes in the operational requirements of its enterprise. “Enterprise” means a business, activity, project, or undertaking.[13]
Mr Forde’s evidence was that typically, for construction projects, once the scope of works starts to reduce, the project will start to reduce the size of its workforce required to do the forecasted works left to go.[14] He provided information showing a downward trend in the number of direct hire and labour hire workers on the project over the period November 2023 to November 2024.[15]
He said that in November 2023 the Walkerston Bypass Project Manager, Mr Andrew King, proposed plans to start reducing the number of project employees before breaking for Christmas, with the last working day of the year being 22 December 2023.[16] He said Mr King proposed to make redundant ten “salary (white-collar)” roles and five “direct hire wages (blue-collar)” roles.[17] Another wages employee, a Leading Hand, was to return to the company’s Rockhampton project from January 2024, as they had been “on loan to Walkerston.”[18] “Approximately” eighteen salaried and eleven wages employees were to remain employed and return after Christmas.[19]
Mr Forde provided[20] a table illustrating the Field Supervisory roles that were to be “demobilised” in December 2023. Relevantly, it lists five Leading Hands, two in Earthworks, one in Structures, one in Pavements, and one on loan from Rockhampton. Mr Kay held one of the two Earthworks Leading Hand roles. The other was a “CW6 Senior Leading Hand” who had commenced on the project in April 2022.[21] I take the “CW6” to be a reference to the classification structure under the relevant enterprise agreement,[22] a copy of which is before me in these proceedings.[23] CW6 is the highest classification in the classification structure at cl 5.1 and requires among other things six years’ experience and a AQF level 4 certificate or assessment at that level.[24] Mr Kay had been employed within the CW5 classification.[25]
Mr Cruikshank was the Pavements Leading Hand and held that position from 4 September 2023.[26] Mr Forde said he was assigned to pavements and Foam Based Bitumen scope of works and was not employed to replace Mr Kay.[27]
For the period from January 2024 the table lists only two Leading Hands, down from five. The two remaining were one Earthworks Leading Hand, and one Pavements Leading Hand. Two Leading Hand roles were made redundant: Mr Kay’s earthworks role, and a Structures Leading Hand. A third Leading Hand returned to Rockhampton. Mr Forde said Mr Kay’s “role … had not been replaced by anyone.”[28]
Mr Forde said Dreampath is an indigenous labour hire company, engaged to supply labour to top up work crews. He said that between February and October 2024 seven direct hire wages employees resigned, because they knew the project was coming to an end and they left to secure longer-term work elsewhere. He said Dreampath labour hire workers were used to cover any gaps as a result of these resignations. Fulton Hogan Construction did not “go to market” to backfill the roles with new direct hire employees because the project was coming to an end.[29]
In cross-examination Mr Forde said that five people (presumably referring to wages employees) had been made redundant at the time of Mr Kay’s dismissal: two Leading Hands (including Mr Kay) and three operator/labourers. Mr Kay put to him that they all worked under Mr Smart, who was the Supervisor for the roads section. Mr Forde said he was not sure but that seemed plausible. He also confirmed Mr Smart remained employed, said he did not know whether Mr Smart had a Leading Hand or any other full-time employees working under him, and that it could be fairly assumed that he had a workforce working for him.
Mr Roszka’s evidence was that in October 2023 Mr King and Mr O’Connor approached him to discuss the status of the completion of the project as a whole and the earthworks scope of works.[30] He said that included discussions regarding “ongoing staffing needs.”[31] He said that around early to mid-November the three of them, along with Human Resources, agreed that as the project scope of works was coming to an end there would be a reduction in staff, and that they would soon start consulting those affected.[32] He said at that point they were expecting earthworks to be substantially complete in or around December that year, and the whole of the project to be completed in around March or April 2024.[33] At the time, he said, the earthworks crew included the two Leading Hands and eight to ten labourers/roller operators.[34] They no longer needed two Leading Hands, and any remaining minor works could be picked up by supervisors and the remaining Leading Hand.[35] He also said some of the duties were “absorbed” by labour hire workers from Dreampath, an indigenous business that had been engaged on the project since July 2022.[36]
Mr Roszka said the project experienced setbacks in mid-December 2023, because of issues with the supply of specialised pavement materials, and wet weather.[37] The wet weather continued and in February 2024 they decided to cease 90% of the works until the weather stabilised.[38] Works recommenced on the foam bitumen stabilised pavement layers in or around mid-May 2024.[39] Nonetheless they did not have any need to employ anyone to perform the role that Mr Kay had previously performed.[40]
Mr Roszka said there were also workers on-site from a firm called Temple Michael. He said that firm had been engaged to conduct crushing works, and that its workers provided some labour supporting those works. He said they were roller and plant operators, were not leading hands, and were “largely demobilised” in 2023. He said those that remained did minor “tidy up” duties.[41]
Mr Roszka said Mr Cruikshank was employed in or around September 2023. He said he recalled conversations with Mr King around this time that “there was a need for a leading hand with key pavement placement experience given the high quality control requirements.” He said he is not aware of Mr Cruikshank being introduced as, or referred to as, Mr Kay’s “replacement,” and nor is he aware of anyone else being referred to as Mr Kay’s “replacement.”[42] He said Mr Kay’s role was not replaced at any time after being made redundant.[43]
Mr Kay’s evidence was that he initially worked in the Drainage section under Supervisor Luke Steinhart and Superintendent Andrew Bar. He said that from 27 March 2023 he was moved to the Roads section, with Mr Smart as Supervisor and Mr O’Connor as Superintendent. He said Mr Bar told him he was to help the other Supervisors and Engineers when asked.[44] However, on the occasions that other Engineers asked him for help, Mr Smart told him to tell them he was too busy.[45]
Mr Kay said that on 30 November 2023, he was called up on the two-way to see Mr O’Connor.[46] He said Mr O’Connor handed him a letter,[47] and told him Mr Forde would tell him all about it the following week.[48] Mr Kay signed and dated the letter. I have discussed this, below, in considering the consultation limb of s 389(1) of the Fair Work Act.
Mr Kay said that Mr Forde called him and stated there was no more work.[49] I have also dealt with this below. Mr Kay annexed to his witness statement the Notice of Redundancy dated 7 December 2023 but emailed to, and signed by, him on 12 December 2023.[50]
Mr Kay said that he found out that temporary hire employees had work until June 2024 and Fulton Hogan Construction had a replacement for his position.[51] In support of this he annexed to his statement an email from himself to his former paid agent, dated 17 February 2024, in which he states that he has found out that Temple Michael had twelve labourers on site until April 2024, Protech (that is, Dreampath) had 12 labourers on site until June 2024, a Brisbane leading hand (apparently a reference to Mr Cruikshank) was being introduced around site as his replacement, and temporary labourers without experience and without roller tickets would be on rollers until June 2024.[52] The email suggests that Mr Cruikshank was Mr O’Connor’s mate, and that Mr O’Connor had also given his son a job on site, despite having no experience as a roller operator.[53]
Mr Kay does not say in that annexure to his witness statement how he found these things out. He said under cross-examination that he had heard Mr Smart introduce Mr Cruikshank as his replacement on the radio, shortly after Mr Kay’s conversation with Mr Forde on 11 December 2023.
Mr Kay also said it was an industry standard that the last one employed is the first to be laid off.[54]
Fulton Hogan Construction submitted,[55] and I accept, that:
a.in determining whether a redundancy is genuine it is relevant to identify whether an employee’s “job” is no longer required to be performed rather than their “duties”;[56] and
b.the relevant test is whether the previous “job” survived, rather than a question as to whether the employee’s “duties” have survived in some form.[57]
The explanatory memorandum for the Fair Work Act dealt with what is now s 389, and explicitly contemplates s 389(1)(a) applying where “the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five…”.[58] It appears to indicate that the process for selecting individual employees for redundancy does not form part of the consideration for s 389(1)(a).[59]
The interpretation of s 389 was considered by a Full Bench in Mackay Taxi Holdings Ltd v Wilson,[60] applying Ulan Coal Mines Limited v Howarth and Others.[61] Relevantly, the question is not whether discrete duties or tasks from Mr Kay’s job were subsequently performed by others. Downsizing can give rise to a finding under s 389(1)(a), as contemplated in the explanatory memorandum to the Fair Work Act. There are circumstances where tasks and duties of a particular employee continue to be performed but nevertheless their job no longer exists. That can include situations where the duties of someone’s job are broken up and distributed among other positions.
Having considered the evidence, I am satisfied that the employer decided in October or November 2023 to reduce the number of Leading Hands on the project. It no longer required Mr Kay’s job to be performed by anyone because of changes in the operational requirements of its enterprise.

Compliance with relevant consultation procedures

The next issue is whether the employer complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. It was not in issue that the relevant instrument is the Fulton Hogan Construction Pty Ltd - Queensland Business Unit Enterprise Agreement 2022 – 2025 (the Agreement).[62] The Agreement incorporates the Building and Construction General On-Site Award 2020 (the Modern Award). Cl 3 of the Agreement provides the parties will be bound by the Consultation Terms in Schedule 3 to the Agreement. It was common ground that the consultation obligation had been activated. So, the employer’s obligations were as follows:
Consultation term
…
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion--provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

In this case, as stated above, Mr Kay met with Mr O’Connor on 30 November 2023. Mr Forde was not there. The employer did not call Mr O’Connor as a witness and Mr Forde could not take me to anything on the evidence explaining why it had not done so. Mr Forde said in the course of submissions that Mr O’Connor had resigned and was no longer with the business, and that Mr Forde had not taken a statement from him prior to his departure. There is nothing before me to suggest that Fulton Hogan Construction made any efforts to seek to locate Mr O’Connor or approach him to give evidence in these proceedings, and nor did Fulton Hogan Construction apply for any order requiring his attendance. Putting aside any possible inference from that, the only direct evidence before me about what happened at that meeting was Mr Kay’s.
Mr Kay’s evidence was that at the meeting on 30 November 2023 he was handed a letter to sign. He agreed in cross-examination that it was the letter of that date (that is, the letter attached to Mr Forde’s statement as annexure NF-05). Mr Forde asked Mr Kay about the meeting with Mr O’Connor. As I averted to above, Mr Kay said Mr O’Connor gave no explanation. Mr Kay’s uncontested evidence was that Mr O’Connor just said “sign this and Nick’s going to tell you all about it next week.” Mr Kay said he signed and dated the letter.
Mr Kay agreed under cross-examination that he did not ask any questions of Mr O’Connor during or after that meeting, and that he did not ask any questions of Mr Smart or Mr King in the period between that meeting and his later phone conversation with Mr Forde.
The letter states:
Dear Darrell,
Notice of organisational change - Walkerston Bypass Project
This letter refers to our meeting held on 30th November 2023 regarding changes to our organisational structure. As you are aware, the Project is transitioning towards completion and our meeting with you was to discuss whether there are any suitable roles within Fulton Hogan which may be available to you for redeployment.
A follow up meeting to discuss your employment with Fulton Hogan will be scheduled with you next week. Between now and then please let me know if you have any questions or feedback before we confirm a final outcome.
If no suitable alternative roles are available for you, your employment will cease by reason of redundancy. If this is the case, we will be issuing you with a notice of redundancy letter and will require you to work your 2 weeks' notice in accordance with the applicable enterprise agreement.
I recognise that this may be a difficult time for you and I encourage you to talk to me if you require further information or support. You are also encouraged to contact an employee assistance counsellor through our EAP service if you feel you need to talk to a professional. Assure EAP contact number is 1800 808 374.
Please do not hesitate to speak with me further if you have any questions or if there is any other support I can provide at this time.
Yours sincerely,
Andy King Senior Project Manager - Walkerston Bypass Project Fulton Hogan Construction Pty Ltd
The letter states a follow-up meeting would be scheduled with Mr Kay the following week. I assume this was the meeting that the employer had intended to hold on 7 December. As stated above Mr Kay also refers to a phone call of 5 December with Mr Forde, but Mr Forde does not say anything about this, and Mr Kay appeared to accept in cross-examination that his next conversation with Mr Forde was on 11 December. In any event, if that phone call of 5 December occurred, it was for the purpose of Mr Forde conveying an outcome, not consulting. The same can be said for the planned meeting of 7 December, the call of 11 December, and the letter of 7 December emailed on the 12^th – they were all for the purpose of giving Mr Kay notice of termination, not for further consultation.
The question is whether the employer’s actions were sufficient to meet the requirement of the consultation term set out above.
The principles of interpretation of enterprise agreements are well established.[63] In construing this clause, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in, among other places, other documents with some association with the enterprise agreement.[64] In this case the provisions above are in the same terms as the model consultation term in Schedule 2.3 of the Fair Work Regulations 2009 (Cth) (the model consultation term) and in my view should be construed consistently with that model term. This raises the question as to how the model term should be construed.
The general principles relating to interpreting primary legislation are equally applicable to interpreting subordinate legislation.[65] These principles are also well settled.[66]
Each of the model consultation term and the term in the Agreement is stated to be a consultation term and the words must be read in that context. The meaning of consultation has been considered extensively in this Commission, and a five-member Full Bench considered the decisions to date at the time in CFMEU v Mt Arthur Coal Pty Ltd.[67]
It is also worth noting the history of the model consultation term. In short, it is as follows. The Fair Work Act provided that a model consultation term would be prescribed by regulation,[68] and subsequently such a term was prescribed by the Fair Work Regulations 2009 (the Regulations), as indicated above. The explanatory memoranda for the Fair Work Act and the Regulations indicated the model term was based on the Australian Industrial Relations Commission’s (AIRC) consultation term for Modern Awards. The AIRC’s consultation term had been developed in 2008.[69] In that case the Full Bench decided to include obligations for employers to notify employees and their representatives of significant workplace change and to discuss the change, and said the clause was “in similar form to the provision introduced by the Commission more than 20 years ago.”[70] In the TCR No. 2 decision of 1984,[71] the Commission had decided to include, in the award they were making, an “obligation for the employers to discuss with employees and their union or unions measures to avert or mitigate the adverse effects of the employers' decision.”[72]
As can be seen from the terms of the clause set out above, the obligation was to provide information to, and discuss the changes with, Mr Kay. There was a further obligation if Mr Kay raised any matters about the major change, which was to give prompt and genuine consideration to those matters.
The term “discuss” is not defined in the Fair Work Act.[73] “Discuss,” in the model consultation term, should be given its ordinary, natural meaning, and it should be read in its context, that is, forming part of a provision for consultation drawing on industrial history dating back to (at least) 1984. For the reasons set out above a consistent interpretation should be given to the term in the Agreement in the present case. Relevantly, in my view that means the discussions should not be treated as mere formalities and should not be perfunctory. [74] At the same time, what is required depends on the factual context, including the workers’ particular circumstances, and the consultation needs to provide the employee with a genuine opportunity to be heard.[75]
I accept Mr Kay’s direct evidence about what happened at his meeting with Mr O’Connor, in the absence of any other direct evidence.
The content and tone of the letter of 30 November, on the one hand, and the meeting of 30 November, on the other, were at odds. The meeting, with the Superintendent Mr O’Connor, was perfunctory. Mr Kay was told to sign the letter, and that Mr Forde would tell him all about it the following week. This tends to undermine the claim, on the face of the letter, that the purpose of that meeting with Mr O’Connor was to “discuss whether there are any suitable roles within Fulton Hogan which may be available to you for redeployment.” Nor does the letter’s invitation to Mr Kay to ask questions sit well with Mr O’Connor telling him to just sign it and Mr Forde would explain it the following week.[76]
As indicated above the next substantive action appears to have been the phone call between Mr Forde and Mr Kay on 11 December, followed by Mr Forde sending the termination letter the day after. In its submissions, Fulton Hogan Construction described the purpose of the call on 11 December 2023 as being “to communicate the outcome of consultation.” The call of 11 December and email of 12 December were not further incidents of consultation but communications by which the company notified Mr Kay that his employment was being terminated.
I am not persuaded that Fulton Hogan Construction complied with the obligation, under the Agreement, to consult about the redundancy. It follows the employer has not made out the requirements in s 389(1) of the Fair Work Act. It is unnecessary for me to consider s 389(2). The employer has not made out its objection on the ground that the termination was for genuine redundancy.
Accordingly, I am satisfied of the matter in s 385(d) of the Fair Work Act. I will now turn to consider whether the dismissal was harsh, unjust, or unreasonable.

Was Mr Kay’s dismissal harsh, unjust, or unreasonable?

Having dealt with paragraphs (a), (c) and (d) of s.385 of the Fair Work Act above, the remaining issue under that provision is whether the dismissal was harsh, unjust, or unreasonable. This requires consideration of the matters listed in s 387 of the Fair Work Act.
Section 387 of the Fair Work Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a)   whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)   whether the person was notified of that reason; and
(c)   whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)   any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(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.
As can be appreciated this does not expressly refer to situations where termination was for redundancy, but the redundancy was not a “genuine redundancy” as defined.
The legislation has contained provisions similar to the current s 387 for many years. Before the “Work Choices” changes took effect,[77] the equivalent provision was found in s 170CG(3) of the Workplace Relations Act 1996, which provided:
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant.
(emphasis added)
As can be seen this explicitly contemplated termination for redundancy as a valid reason under paragraph (a). The selection process for redundancy could be considered,[78] as could the question of whether the action of the employer was consistent with management of the undertaking that meets the employer’s obligations to employees.[79]
In the period between Work Choices and the Fair Work Act, there was an exclusion from the unfair dismissal provisions if the termination was for genuine operational reasons, or for reasons including genuine operational reasons.[80] This was the predecessor to current s 389 but was in different terms. Under that exclusion, if termination for operational reasons was established, that was sufficient basis for the Commission to dismiss the application, without also considering compliance with the employer’s obligations (such as consultation).
In that period, the equivalent to s 387 was in substantially the same terms as it is now; the pre-Work Choices inclusion of “operational reasons” in paragraph (a) had been removed, to reflect the exclusion.
The Fair Work Act’s only substantive change to the text of what is now s 387 was to add the paragraph relating to support persons.[81] So, though the Fair Work Act qualified what had been the operational reasons exclusion, it did not make any corresponding change to s 387.
It is possible that paragraphs (a), (b), (c), and/or (e) of s 387 could apply to a termination that is for operational reasons and reasons related to conduct, capacity, or performance. For example, if an employer decided to reduce the number of roles at a particular classification for operational reasons, then selected people based on their disciplinary history, injury, or performance, then those provisions may be relevant (if the employer had not been able to make out the exclusion in s 389).[82] That is not the case in these proceedings; none of those reasons were alleged or relied on by either party.
In any case, paragraph (h) remains a broad provision allowing the Commission to consider any other matters it considers relevant. In my view, where the termination was for redundancy, other relevant matters would likely include:
(a) the matters provided for in s 389 regarding consultation and redeployment;
(b) for redundancies arising from downsizing (that is, the reduction in number of roles overall), the fairness of the selection process;
(c) the objects of the relevant Part of the Fair Work Act[83], including the intention to ensure a “fair go all round”.[84]
Those matters are not of themselves determinative. A failure to consult may, but does not necessarily, mean a dismissal is harsh, unjust, or unreasonable.[85] The overarching task is to weigh up the various relevant matters and decide whether the Commission is satisfied that the dismissal was harsh, unjust, or unreasonable.[86]

Paragraphs (a), (b), (c), and (e)

Paragraphs (a), (b), (c) of s 387 of the Fair Work Act relate to dismissals for conduct or capacity, and paragraph (e) relates to dismissals for unsatisfactory performance, not dismissals for redundancy. This was a dismissal for redundancy and no party has argued that Mr Kay was selected for any of these reasons. So, these paragraphs need not be considered further in this matter.[87]

Paragraphs (d), (f), and (g)

Mr Kay did not say he had asked for a support person to be present for any discussions relating to the dismissal. It is not necessary for me to further consider paragraph (d). The employer is a substantial firm with its own in-house human resources advice. It is not necessary for me to further consider paragraphs (f) or (g).

Paragraph (h)

As indicated above, s 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. I have stated above some matters I consider may be relevant in a case such as this one.
I accept that it is the nature of construction projects that the needs of the project change over time, and that the project itself comes to a natural conclusion, the timing of which may be affected by various events and risks. I have found, above, that the reason for the dismissal was redundancy. This is a factor weighing against a finding that the dismissal was unfair, that is, harsh, unjust or unreasonable.
The consultation did not meet the requirements of the consultation term in the Agreement. There was partial compliance: the employer provided information but failed to meet the obligation to discuss. It is true that Mr Kay did not engage in any apparent self-help by asking questions or proactively telling the employer he would consider relocating or a lower classification, but this does not weigh against him given what he was told at the meeting on 30 November 2023. The employer’s failure to consult to the extent required under the Agreement weighs in favour of a finding that the dismissal was unfair, but not as strongly as would have been the case if there was no attempt at consultation whatsoever.
Fulton Hogan Construction submitted it took reasonable steps to redeploy Mr Kay within its organisation. It relied on Ulan Coal Minese Limited v Honeysett and others[88] to argue that the question was whether redeployment would have been reasonable, taking into account the nature of any available position, the qualifications required, 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. They argued they took reasonable steps to identify suitable alternative roles, before making a final decision about Mr Kay’s role.[89] It made submissions about the steps taken, which made clear that location was a consideration for it. I accept that location is a consideration in assessing whether a proposed redeployment is reasonable. The difficulty that arises for Fulton Hogan Construction is that because of the lack of compliance with the consultation provision there was no discussion with Mr Kay about whether he might be able to relocate, so it would have been difficult to assess reasonableness. Similarly, the failure to properly consult meant the employer did not talk with Mr Kay about whether he might take a role at a lower classification. So, it would have been difficult to assess what alternative roles might have been suitable.
However, there is no evidence of any specific suitable roles to which Mr Kay could have been redeployed at a different location, or at a lower classification. And Mr Kay did not argue that the company should have considered redeploying him to a role on a different project or site, outside of Mackay or otherwise. Rather, his arguments went to whether the job was redundant, selection for redundancy, and whether direct hire wages employees should have been laid off when there were still temporary, labour hire workers engaged on the project. So, on balance, while I am of the view that the question of whether Mr Kay could reasonably have been redeployed is a relevant consideration, I also consider it to be a neutral one in this case.
As indicated above, in my view the fairness of selection for redundancy, in the context of downsizing, is not relevant to determining an objection on the grounds of genuine redundancy under s 389 for the Fair Work Act but may be a relevant matter for the purposes of s 387 if the objection under s 389 is not made out.
Mr Kay seeks to make the argument that his selection as one of the Leading Hands to be made redundant was related to nepotism, with the Superintendent Mr O’Connor organising a job for his “mate” Mr Cruikshank, and Mr Cruikshank effectively replacing him. Even putting aside the nepotism claim, he considers it unfair to select jobs held by people who have been employed longer than those unaffected (saying it should have taken a “last on, first off” approach).

I accept the employer’s submission that it is not under any legal obligation to select for redundancy on a last on, first off basis.[90] It was open to the employer to select for redundancy based operational needs for skills and experience, not length of service.
It was Mr Roszka’s evidence that Mr O’Connor was part of the decision-making process that led to the decision to downsize,[91] and that others involved included Mr King, Mr Roszka, and Mr Forde. I find it more plausible that Fulton Hogan Construction selected jobs for redundancy on the basis of the roles, skills and experience that were most relevant to the work remaining to be done on the project, than on the basis of Mr O’Connor’s relationship with Mr Cruikshank.
Mr Kay said he heard Mr Smart, on the radio, introduce Mr Cruikshank as Mr Kay’s replacement. He said this under cross-examination and had not previously indicated in his written materials the source of his knowledge that Mr Cruikshank had been introduced this way, so it is not surprising that the employer did not call Mr Smart to refute this. Regardless, this is hearsay, and there is no evidence that Mr Smart was among the decision-makers as to whether to downsize and if so which jobs to select, or that he was party to their discussions. There is evidence that Mr Cruikshank’s employment on the project predated the decision to downsize.
I do not consider Mr Kay’s arguments about the continued use of labour hire workers, temporary employees, or an employee from Brisbane, support a finding that the dismissal was unfair. The employer provided evidence and submissions about why it engaged Temple Michael, Dreampath, and Mr Cruikshank (who was from Brisbane). I do not need to go into those reasons as I am not, in any event, persuaded that the employer’s decisions about the broader composition of the workforce on this project render Mr Kay’s dismissal for redundancy unfair.
For completeness I note notice was not given until 10 December 2024, by phone. In these proceedings Mr Kay did not argue that the failure to provide the full two weeks’ notice of termination referred to in the correspondence dated 7 December but provided 11 December 2024 rendered the dismissal unfair; his submissions were directed to the matters above.
Having considered each of the matters specified in s 387 of the Fair Work Act to the extent necessary, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable. The downsizing and consequent redundancy represented a valid reason for termination, which I took into account in applying s 387(h). I am not persuaded that the deficiencies on the employer’s part were such as to render the dismissal unfair.

Conclusion

I am not satisfied that the dismissal was harsh, unjust or unreasonable. So, I am not satisfied that Mr Kay was unfairly dismissed within the meaning of s 385 of the Fair Work Act. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

D Kay, Applicant
N Forde of the Respondent

Hearing details:

29 November
Brisbane
2024.

[1] Cross-examination of Mr Kay.

[2] Fair Work Act 2009 (Cth) ss 382 and 390.

[3] Ibid, ss 385 and 390(1).

[4] Ibid, s 386.

[5] Ibid, ss 385(c) and 388.

[6] Ibid, s 385(d).

[7] Ibid, s 396(d).

[8] McKerlie v RateIt Australia Pty Ltd (t/a RateIt)[2020] FWCFB 5131, [58].

[9] Fair Work Act 2009 (Cth) s 397.

[10] Ibid, s 399.

[11] Respondent’s submissions filed 15 November 2024, [31].

[12] Ibid, [30].

[13] Fair Work Act 2009 (Cth) s 12.

[14] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [12].

[15] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [54] and annexure NF-08.

[16] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [13].

[17] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [14]-[15].

[18] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [15].

[19] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [14]-[15].

[20] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [16] and annexure NF-04.

[21] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [50].

[22] Fulton Hogan Construction Pty Ltd - Queensland Business Unit Enterprise Agreement 2022 – 2025.

[23] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [7] and annexure NF-02.

[24] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [7] and annexure NF-02, cl 5.1.

[25] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [6] and annexure NF-01, cl 3.3.

[26] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [43]-[45], [50].

[27] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [44].

[28] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [42].

[29] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [51]-[52], and annexure NF-08.

[30] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [7].

[31] Ibid.

[32] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [8] and [11].

[33] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [9] and annexure MR-01.

[34] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [10].

[35] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [11].

[36] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [17].

[37] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [13].

[38] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [14].

[39] Ibid, [14].

[40] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [15].

[41] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [18].

[42] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [19].

[43] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [20].

[44] Exhibit A1, Statement of Mr Kay filed 1 November 2024, [3] and [6].

[45] Exhibit A1, Statement of Mr Kay filed 1 November 2024, [7].

[46] Exhibit A2, Mr Kay’s statement in reply to Mr Forde’s statement, 1.

[47] Exhibit A1, Statement of Mr Kay filed 1 November 2024, [9].

[48] Cross-examination of Mr Kay.

[49] Exhibit A1, Statement of Mr Kay filed 1 November 2024, [10].

[50] Exhibit A1, Statement of Mr Kay filed 1 November 2024, annexure DK1.

[51] Exhibit A1, Statement of Mr Kay filed 1 November 2024, [11].

[52] Exhibit A1, Statement of Mr Kay filed 1 November 2024, annexure DK2, 1.

[53] Exhibit A1, Statement of Mr Kay filed 1 November 2024, annexure DK2, 3.

[54] Exhibit A3, Mr Kay’s statement in reply to Mr Roszka’s statement, 1.

[55] Respondent’s submissions filed 15 November 2024, [14].

[56] Relying on Ulan Coal Mines Limited v Howarth and Others[2010] FWAFB 3488, [17].

[57] Relying on Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hardtrodt[2010] FWA 674, [27].

[58] Fair Work Bill 2008 Explanatory Memorandum, [1548].

[59] Fair Work Bill 2008 Explanatory Memorandum, [1553].

[60] (2014) 240 IR 409 at 416-420 [29]-[47], cited by Steward J in Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27; 97 ALJR 711; 412 ALR 134; 326 IR 179, [100].

[61] [2010] FWAFB 3488.

[62] Exhibit R2, Statement of Mr Forde filed 15 November 2024, [1] and Annexure NF-02.

[63] including Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College[2025] FWCFB 1, [17]; Ridd v James Cook University (2021) 274 CLR 514, [17]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536, [197], Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; Kucks v CSR Ltd (1996) 66 IR 182.

[64] Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College[2025] FWCFB 1, [17].

[65] Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; 97 ALJR 575, [14].

[66] See the discussion of these principles in Australian Rail Track Corporation Limited v Australian Rail, Tram and Bus Industry Union [2024] FCAFC 170, [41]-[44] (Katzmann J, with whom Collier and Snaden JJ relevantly agreed).

[67] CFMMEU v Mt Arthur Coal Pty Ltd[2021] FWCFB 6059; 310 IR 399.

[68] Fair Work Act 2009 (Cth) s 205.

[69] Re Award Modernisation [2008] AIRCFB 717; Re Award Modernisation [2008] AIRCFB 1000.

[70] Re Award Modernisation [2008] AIRCFB 717, [18]; Re Award Modernisation [2008] AIRCFB 1000, [40]-[41].

[71] TCR No. 2 decision (1984) 9 IR 115.

[72] Ibid, 127.

[73] “Discuss” is used in various other provisions of the Fair Work Act 2009 in different contexts, for example ss 66AAC, 83, 387 and 484.

[74] CFMEU v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059, [108].

[75] Ibid.

[76] Compare this with the facts in Ventyx Pty Ltd v Mr Paul Murray[2014] FWCFB 2143, [54]-[58] where the employer had provided the relevant manager with a pre-prepared script to help them discuss the content of a similar letter with the employees being consulted.

[77] Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

[78] see for example Hodgson and others v Chiquita Mushrooms Pty Ltd PR958368 [2005] AIRC 515; Maret v Network Ten (Perth) Pty Limited - PR940428 [2003] AIRC 1406; Pacific Coal Pty Ltd v Smith and Others, [Print 925566] [2002] AIRC 1534 (Watson SDP, Kaufman SDP, and Smith C).; S.J. Fetz and Ors and Qantas Airways Limited Print P6706 [1997] AIRC 1128.

[79] Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

[80] Workplace Relations Act 1996 (Cth), ss 643(1), (8), and (9), and 649, as in force immediately prior to the commencement of the Fair Work Act.

[81] Fair Work Act2009 (Cth) s 387(d); see also Fair Work Bill 2008 Explanatory Memorandum, [1542].

[82] See for example Pacific Coal Pty Ltd v Smith and Others, [Print 925566] [2002] AIRC 1534 (Watson SDP, Kaufman SDP, and Smith C).

[83] Fair Work Act 2009 (Cth) s 381.

[84] Fair Work Act 2009 (Cth) s 381(2).

[85] Frederick Deon Du Preez v MSWA Limited[2024] FWC 1793; 332 IR 357 (Lim C), [43]; Hongnipon & Wei Wei v Total Fire Stopping Pty Ltd [2023] FWC 3412 (Roberts DP), [32]. UES (Int’l) Pty Ltd v Leevan Harvey[2012] FWAFB 5241, [49] (Acton SDP and Bissett C).

[86] Frederick Deon Du Preez v MSWA Limited[2024] FWC 1793; 332 IR 357 (Lim C), [43]; See also Fair Work Bill 2008 Explanatory Memorandum, [1541].

[87] Kyoung Sub Cha v The Coffee Traders Group Pty Ltd[2024] FWC 3099 (P Ryan C), [61]; Alicia English v Tee Ink Pty Ltd T/A Charlie Holiday[2023] FWC 2328 (Saunders DP), [62]-[70]; Rui Liu v JHC Corporate P/L[2021] FWC 5345, [75]-[81]; UES (Int’l) Pty Ltd v Leevan Harvey[2012] FWAFB 5241 at [42]-[45] (per Acton SDP and Bissett C).

[88] [2010] FWAFB 7578.

[89] Respondent’s submissions, [23]; Exhibit R2, Statement of Mr Forde filed 15 November 2024, [24]-[25].

[90] Danny Yeung v DCA Technologies Pty Ltd[2020] FWC 3752, [46]; Mr Leon Morgan v Mineral Technologies Pty Ltd[2015] FWC 4142, [65].

[91] Exhibit R1, Statement of Mr Roszka filed 15 November 2024, [7], [8], and [11].

Printed by authority of the Commonwealth Government Printer