Hayley Lord v Millet Hospitality Geelong Pty Ltd
[2025] FWC 2740
•25 SEPTEMBER 2025
| [2025] FWC 2740 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Hayley Lord
v
Millet Hospitality Geelong Pty Ltd
(U2025/10907)
| COMMISSIONER REDFORD | MELBOURNE, 25 SEPTEMBER 2025 |
Application for an unfair dismissal remedy
On 27 June 2025 Ms Hayley Lord made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) against her former employer, Millet Hospitality Geelong Pty Ltd (Millet).
Millet objects to the application on the basis it says Ms Lord’s dismissal was as a result of a genuine redundancy and was consistent with the Small Business Fair Dismissal Code (SBFDC). Ms Lord contests these objections and seeks from the Commission a remedy in respect to unfair dismissal.
A hearing was conducted on 23 September 2025 to determine these matters, after the parties had previously been provided with an opportunity to file material in support of their respective positions on the jurisdictional questions and the merits of the application. The hearing was conducted by way of determinative conference. Both parties were self-represented at the determinative conference.
Ordering a remedy in relation to unfair dismissal
Section 390 of the Act provides that the Commission may order remedy if:
a.the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
b.the person has been unfairly dismissed.
Section 396 of the Act requires that the Commission decide several matters relating to an application for an unfair dismissal remedy before considering the merits of the application. Those matters are:
a.whether the application was made within the period required in s 394(2) of the Act;
b.whether the person was protected from unfair dismissal;
c.whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC);
d.whether the dismissal was a case of genuine redundancy.
A person is “protected from unfair dismissal” if they are an employee who has completed a period of employment with his or her employer of at least the minimum employment period and one or more of the following apply[1]:
a.a modern award covers the person;
b. an enterprise agreement applies to the person in relation to the employment;
c.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.
Ms Lord’s application was made within the period required by s 394(2) of the Act and she is a person protected from unfair dismissal, having been employed on a part time basis since November 2020 and her employment covered by the Hospitality Industry (General) Award 2020 (the Award). The questions which arise however are those relating to Millet’s claim the dismissal was consistent with the SBFDC and whether the dismissal was a case of genuine redundancy.
The Small Business Fair Dismissal Code
Millet claims that Ms Lord’s dismissal was consistent with the SBFDC. If this is the case, Ms Lord cannot have been unfairly dismissed.
There is no dispute before me that Millet is a small business, within the meaning of the Act.
The SBFDC provides as follows:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Accordingly, the SBFDC only deals with dismissal arising from serious misconduct and where there is a valid reason for dismissal arising from the employee’s conduct or capacity to do the job. Here, the dismissal arises from a redundancy. Generally, the Commission does not consider the Code applicable to a dismissal arising from redundancy[2]. I therefore do not consider that it can be said Ms Lord’s dismissal was consistent with the SBFDC because it does not apply in these circumstances.
Whether the dismissal was a case of genuine redundancy
Millet asserts that the dismissal of Ms Lord’s employment was as a result of a genuine redundancy. It is necessary to set out some brief background to explain why, in my view, Ms Lord’s employment was not a case of genuine redundancy, as defined in the Act.
Relevant background
Ms Lord was employed on 25 November 2020 a Housekeeping Supervisor working at the “Quest” serviced apartment complex in Geelong. Ms Lord worked 35 hours per week, and her duties included managing the other room attendants, rostering, ordering supplies and other associated matters.
Millet’s owner, Mr Xavier Wu, gave evidence in this proceeding. On 26 May 2025 Mr Wu issued Ms Lord what he described in his evidence as a “formal redundancy notice”. The letter said, relevantly, that:
a.“As part of our current operational restructure, we have made the difficult decision to remove the Housekeeping Supervisor position effective 26 June 2025 …”
b.“Before any final steps are taken, we would like to offer you the opportunity to discuss potential alternative roles – such as part-time or casual housekeeping role …”
c.Please let me know by Monday 3 June if you would be interested in a conversation. Otherwise we will proceed with the removal of the current position as planned.”
Mr Wu explained further that since 2023 new hotels had opened in Geelong which impacted negatively on his business. He said he lost key personnel from the business, including a Property Manager, in 2024, and had been trying to manage the business himself. He said the business was not profitable, and he has explored a number of ways to try and make the business profitable, including taking on more work himself and attempting to identify other efficiencies. He said he decided to make the Housekeeping Supervisor role redundant because the role could be absorbed by other people working in the business (including himself).
On 27 May 2025 Ms Lord responded to the email she had received on 26 May 2025, asking what hours could be guaranteed as a casual or part time employee and the relevant pay rate for those roles, and also what the “redundancy payout figure you would also be offering” if Ms Lord chose not to take up those roles.
Later on 27 May 2025 Mr Wu responded advising that Millet was a small business, and thus “redundancy pay does not apply in this case”. It also said that the “roles” were “operationally dependent and we are unable to guarantee a minimum number of hours”. Mr Wu again asked Ms Lord to advise whether she wanted to “proceed with one of these role options” by 3 June 2025 or “we will proceed with the removal of the current position as planned.”
Ms Lord sent a reply suggesting that another employee had been made redundant and paid a “redundancy payout”, asking whether she was being “discriminated against” by a redundancy payment not being offered to her. The reply also claimed that Ms Lord had not been consulted “as per the hospitality award regarding a redundancy” and said she would be “contacting fairwork to submit my application to take this further …”.
Later on 27 May 2025 Mr Wu sent Ms Lord a response which disputed Ms Lord’s claims and again asked Ms Lord to confirm whether she would “like the company to consider offering you a casual or part time housekeeping role (how many hours) …” and how she intended to carry out her duties during the remainer of her notice period.
On 28 May 2025 Ms Lord sent Mr Wu an email which asserted that there “should have been a formal consultation process with me prior to you making a final decision making my role redundant” and that she would be “making an application to fair work …”. Mr Wu responded by saying, among other things, that “I have the right to make operational decisions including removing a role that the business no longer requires”, and while “this decision does not require employee agreement, I have always remained open to consultation regarding any possible redeployment or alternative arrangements …”. It also complained that Ms Lord had been offered a specific meeting time and date after she expressed that she wished to be consulted, but Ms Lord did not attend work or accept or reject that meeting invite. Mr Wu asked whether Ms Lord intended to continue to work during her notice period and whether she was available to attend a consultation meeting.
Ms Lord later responded advising that she was on sick leave, and had advised as such previously, and furnished a medical certificate. She reiterated that she was “proceeding to fair work for an unfair dismissal” and would not be prepared to discuss the matter while on sick leave.
The last correspondence between the parties was an email sent by Mr Wu on 28 May 2025 stating that he had not been aware of Ms Lord’s sick leave until that morning. He said he would temporarily take over her duties during her absence and asked that when Ms Lord was ready to return to work that she provide him with notice so he could plan accordingly.
During the determinative conference there was some suggestion made by Mr Wu that he had tried to talk to Ms Lord about restructuring her role in April 2025. Ms Lord said she does not remember the conversation. Mr Wu’s account of the conversation was that it was focused on Ms Lord’s hours of work, which were not ideal. I do not consider that this conversation, which was not mentioned in Mr Wu’s written material, was one in which Ms Lord was told clearly (as she was on 26 May 2025) that her role was redundant, nor was it one in which she was told by Mr Wu he was contemplating making the role redundant.
The email sent to Ms Lord on 26 May 2025 advising of the redundancy provided a period of four week’s notice. Ms Lord was absent from work on sick leave from 28 May 2025 and returned to work on 9 June 2025. She worked her notice period and ceased work on 26 June 2025.
The meaning of genuine redundancy
The meaning of “genuine redundancy” is contained with s 389 of the Act as follows:
“(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”
If follows that three findings are required: whether the role is redundant; whether there was compliance with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy, and whether it would have been reasonable to redeploy the Applicant in another role[3].
Did Millet no longer require the role of housekeeping supervisor to be performed by anyone because of changes in the operational requirements of its enterprise?
In written submissions, Ms Lord disputed that her role was no longer required and claimed that the functions of her role continued to exist but were simply reassigned to other staff. She claimed this does not meet the definition of genuine redundancy.
It is well established that the fact that the duties of a particular job or position which has been abolished have been reallocated to another position or positions as part of an employer’s restructure, does not, of itself, alter the fact that the employer no longer requires that job to be performed by anyone. Simply because some aspect of the employee’s duties is still required to be performed by somebody does not mean the employee cannot be redundant[4].
Mr Wu gave evidence that during May 2025 due to financial pressures he reviewed all roles within his business and identified the Housekeeping Supervisor role as no longer required, as the duties could be re-distributed to existing staff. He said that the position has been permanently abolished and, as a result, his business has derived a net reduction in its labour cost.
Ms Lord said she believed her redundancy may have been influenced by a conversation in April 2025 about a disagreement she had with Mr Wu about washing sheets. Millet said in its reply submissions that Ms Lord’s account of this conversation is exaggerated and in any event had nothing to do with its decision to make her role redundant. Mr Wu confirmed this in his oral evidence at the hearing of this matter, and I accept his evidence. I do not consider this matter impacted on the decision to make Ms Lord’s role redundant.
I also accept Mr Wu’s evidence that his decision to remove the role of Housekeeping Supervisor was a change to his businesses’ operational requirements occasioned by a genuine effort to deal with business pressures. I therefore find that Millet no longer required the role of Housekeeping Supervisor to be performed by anyone because of changes in the operational requirements of its enterprise.
Did Millet comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?
In the circumstances of this case, it is appropriate to emphasise that for a dismissal to meet the definition of genuine redundancy under the Act, an operational imperative is not enough – two further elements are required.
One of those is that if there is an obligation on the part of the employer to consult with an employee about the redundancy arising from an Award or an enterprise agreement, that obligation must be complied with.
There is no doubt Millet had such an obligation in respect of Ms Lord. It was not in dispute that Ms Lord was covered by the Hospitality Industry (General) Award 2020 which provides at clause 38 the following:
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 38.2does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
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; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
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.
It is not necessary in this matter to engage in a lengthy discourse on the meaning of the word “consultation”, save to say that it is well established that for a discussion about a decision to constitute “consultation” it must occur before the final decision is made[5]. This is reflected in clause 38 of the Award, which requires a “discussion” to occur (as opposed to, for example, a “notification”) about effects which are “likely” but not, for example, set in stone[6].
In its reply submissions, Millet claimed that its email sent to Ms Lord on 26 May 2025 established a “genuine consultation process”, and that “its intentions were transparent: the restrucuring no longer required the Housekeeping Supervisor role within the business and the timeline was shared openly with the Applicant”. At the hearing, Mr Wu continued to describe his efforts to engage with Ms Lord as “consultation”.
However, as Millet itself conceded in its written statement in reply:
“If the Applicant believes consultation could have “changed the decision”, the only possible change would have been to extend the transition period – giving her additional time to secure alternative employment or consider redeployment if she had come for the consultation. The consultation was genuine and intended to ease the transition, not to reverse the structural changes [emphasis added]”.
The proposition was put to Mr Wu, that the language he used on 26 May 2025 and the language he has used since, including in his submissions made to the Commission, indicate a finality to the decision he communicated to Ms Lord, that her role was redundant. In response to this proposition Mr Wu initially submitted that this was not his intention and, that as a non-english speaker, he had sought to express himself with the aid of “Chat GPT”, which may not have captured his true meaning.
I do not accept this submission. Mr Wu repeatedly confirmed his decision to make the Housekeeping Supervisor role redundant in his communications with Ms Lord and in his evidence and submissions made to the Commission. He was open to the proposition that Ms Lord continue working for his business in a different role, but not the role which was made redundant.
Accordingly, in so far as Millet claims that its efforts to “consult” with Ms Lord occurred before a final decision to make her role redundant, the evidence does not support this submission. Mr Wu’s decision to make Ms Lord’s role redundant was final at the time it was communicated to her. The “consultation” he said he initiated could not have changed that decision. The attempts to engage with Ms Lord were, seen in context, entirely about discussing re-deployment options.
Mr Wu should have indicated to Ms Lord that he was considering making her Housekeeping Supervisor role redundant and asked for her feedback. He should have then given careful consideration to her feedback, and engaged with her further if necessary, to clarify her thoughts on the matter. After that process, he might have made a final decision to make the role redundant.
Millet did not comply with its obligation under the Award to consult with Ms Lord about the redundancy. As a result, the dismissal did not occur as a result of a genuine redundancy within the meaning of the Act
Was it reasonable for Millet to redeploy Ms Lord in another role?
The other element arising from the definition of “genuine redundancy” is whether it would have been reasonable in all the circumstances for the employee to be redeployed in another role.
Having determined that Millet did not comply with its obligation to consult with an employee with Ms Lord about the redundancy or her role, it is not necessary for me to form a conclusion about whether it would have been reasonable in all the circumstances for her to be redeployed in another role and, given the nature of the evidence in relation to this issue, I do not intend to. I will however observe that:
a.I consider the offer made to redeploy Ms Lord into a casual role was genuine.
b.In its reply submissions, Millet claimed that in respect to the part time role Ms Lord was invited to nominate her preferred hours and in his Witness Statement, Mr Wu claimed he specifically invited Ms Lord to indicate how many hours she wished to work, “as part-time arrangements require an agreed pattern of regular hours before such an agreement can be established”. However, on 27 May 2025, referencing both the casual role and the part time role, Millet said “we are unable to guarantee a minimum number of hours”. Mr Wu conceded during the hearing that at no point did he advise Ms Lord how many hours were involved in the part time role. Accordingly, Millet’s proposition as to a part time role was not made in a manner outlining for Ms Lord the minimum number of ordinary hours and when asked to do so initially, it said it could not. Millet’s offer in respect to the part time role was therefore lacking crucial detail.
c.Ms Lord escalated the tone her correspondence with Millet in a manner that did not assist her to understand more about the re-deployment options that may have been available, that may have suited her circumstances. Her references to “discrimination” and threats about “fairwork” proceedings were not conducive to a sensible discussion about how the employment relationship could continue in another role. While it is likely any such role might have inevitably meant a demotion in status, and perhaps salary, a more constructive discussion may have resulted in a role more suitable to Ms Lord’s circumstances. Ms Lord bears some considerable responsibility for these discussions breaking down.
However, having found that Millet failed to comply with an obligation to consult with Ms Lord about the redundancy it is unnecessary for me to arrive at a conclusion as to whether it was reasonable for Millet to redeploy Ms Lord. The dismissal was not as a result of a genuine redundancy, in any event.
Statutory provisions - unfair dismissal
Given my findings in relation to these initial matters, I am required to determine whether Ms Lord was unfairly dismissed.
A person has been unfairly dismissed if the dismissal was “harsh, unjust or unreasonable”[7]. Section 387 of the 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.
I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me[8].
Was there a valid reason for dismissal related to Ms Lord capacity or conduct?
It is well established that order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced” [9].
While, as I will expand on further below, the manner in which Millet terminated Ms Lord’s employment was lacking, the reason for the dismissal was valid. As I have found above, Millet’s decision to remove the role of Housekeeping Supervisor was a change to his businesses’ operational requirements occasioned by a genuine effort to deal with business pressures. The reason to dismiss Ms Lord was because her role had therefore become redundant. This reason was sound, defensible and well founded.
It did not however relate to Ms Lord’s capacity or conduct. I therefore find this a neutral factor in my consideration as to whether Ms Lord’s dismissal was harsh, unjust or unreasonable[10].
Was Ms Lord notified of the reason for dismissal?
Notification of the valid reason for dismissal must be given to the employee explicitly and in plain and clear terms. And crucially, this must occur before the decision to terminate the employment is made[11].
Ms Lord was told of the reason for the dismissal of her employment – redundancy – on 26 May 2025 – after the decision had been made.
I therefore find Ms Lord was not notified by Millet of the reason for her dismissal before the decision was made to terminate her employment. This factor weighs in favour of a finding that the termination of Ms Lord’s employment was unfair.
Was Ms Lord given an opportunity to respond to the valid reason?
An employee protected from unfair dismissal should be notified of a reason for the termination of their employment relating to their capacity of conduct before a decision is taken to terminate that employment so that they can provide a response before the decision is final[12]. In this matter, the reason for Ms Lord’s termination of employment did not relate to her capacity or conduct – it was as a result of redundancy. I therefore find this a neutral factor in my consideration as to whether Ms Lord’s dismissal was harsh, unjust or unreasonable.
Did Millet unreasonably refuse to allow Ms Lord to have a support person present to assist at discussions relating to the dismissal?
In this matter, this factor is not relevant.
Was Ms Lord warned about unsatisfactory performance before the dismissal?
In this matter, this factor is not relevant.
To what degree would the size of Millet’s enterprise or the absence of human resources management specialists be likely to impact on the procedures followed in effecting the dismissal?
In considering whether a termination of employment is harsh, unjust or unreasonable, ss 387(f) and (g) of the FW Act requires that I give consideration to the degree to which the size of Millet’s business or the absence of human resources management specialisation or expertise was likely to have impacted on the procedures followed in effecting the dismissal.
It is plain Millet has no human resource management specialisation within its business. Its size also appears to mean that human resources management is undertaken by Mr Wu himself, who is limited to some extent by English not being his first language.
In submissions made for Ms Lord at hearing, it was observed that it was most unfortunate that Mr Wu chose to communicate to Ms Lord the news that her role with the business was redundant via email in the evening of 26 May 2025, instead of speaking face to face with Ms Lord earlier that day, when they were both at work.
In most circumstances, a cursory text message or email is not an appropriate means of conveying information as serious as the dismissal of a person’s employment[13].
In its submissions, Millet said that it chose to “communicate in writing to ensure there was clear evidence of each step”, and if Ms Lord “was expecting verbal discussions, the Respondent deliberately kept all communication in writing to avoid any risk of misunderstanding or future dispute”. Mr Wu repeated this submission at the hearing.
I do not consider this submission assists Millet. Ms Lord had been an employee of Mr Wu’s business since November 2020 – for nearly five years. Ms Lord said she had a good relationship with Mr Wu. Ms Lord and Mr Wu were at work together on 26 May 2025. However, Mr Wu did not take the opportunity during that day to take Ms Lord aside and explain his thinking about the redundancy of her role. It was an omission on his part to not have spoken to Ms Lord face to face on that day. This would have afforded her a much more appropriate opportunity to respond.
There is a difference between the ignorance which may result from a small business not having access to human resources expertise, and a failure to adhere to basic standards of decency with respect to an employee[14]. I do not consider the size of the business, or the absence of human resources expertise excuses Mr Wu’s failure to speak to Ms Lord face to face about something as significant as the redundancy of her role. I do not consider this factor weighs against a finding that the termination of Ms Lord’s employment was unfair.
What other matters are relevant?
Several other matters are relevant.
While not a valid reason relating to Ms Lord’s capacity or conduct (within the meaning of s 387(a) of the FW Act) the reason for the decision to dismiss her employment was defensible and well founded and based on an operational decision driven by a genuine financial pressure on the business. It is appropriate to take this into account pursuant to s 387(h) of the FW Act[15], and I do so. This weighs against a finding that the termination of Ms Lord’s employment was unfair.
In addition to the other matters set out in s 387 of the FW Act, it may often be appropriate to take into account the failure to consult with an employee whose employment is terminated as a result of redundancy in determining whether the termination was harsh, unjust or unreasonable[16]. This weighs in favour of a finding that the termination of Ms Lord’s employment was unfair.
As I have observed above, I consider it a significant omission by Mr Wu that he chose not to take the opportunity to speak to Ms Lord about the redundancy of her role face to face on 26 May 2025, instead choosing to deliver the news via email later that evening. I consider this omission weighs in favour of a finding that the termination of Ms Lord’s employment was unfair.
For completeness, I note that on 27 May 2025 Mr Wu proposed there be a meeting the following day at work, after Ms Lord’s shift. This meeting did not eventuate because Ms Lord was absent from work on sick leave that day.
As I have observed above, by this point, the tenor of the email conversation between Ms Lord and Mr Wu had become somewhat tense, largely due to Ms Lord’s decision to increase the combative tone of her messages. Ms Lord conceded that to some extent her correspondence was an overreaction caused by her upset at what was happening. This tempers to some small extent the omission by Mr Wu not to speak to Ms Lord face to face on 26 May 2025 while at work, although perhaps if had done so, things may not have escalated in the manner that they did.
Is the Commission satisfied that the dismissal of Ms Lord was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s 387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable[17]. The weight of these considerations bears in favour of a finding that the dismissal of Ms Lord was harsh, unjust and unreasonable, particularly due to the process Mr Wu adopted to effect the termination of employment, communicating the decision via email and not adhering to the consultation obligations in the Award. I find Ms Lord was unfairly dismissed.
Remedy
Being satisfied that Ms Lord
a.made an application for an order granting a remedy under s 394;
b.was a person protected from unfair dismissal;
and was unfairly dismissed within the meaning of s 385 of the FW Act, I may, subject to the FW Act, order Ms Lord’s reinstatement, or the payment of compensation to Ms Lord.
Under s 390(3) of the FW Act, I must not order the payment of compensation to Ms Lord unless: (a) I am satisfied that reinstatement of Ms Lord is inappropriate; and (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Ms Lord inappropriate?
Ms Lord does not seek reinstatement and her role at Millet is redundant. I find in these circumstances that reinstatement is inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
In circumstances where reinstatement is not appropriate, s 390(3)(b) of the Act requires that an order for payment of compensation must not be made unless I am satisfied it is appropriate in all the circumstances of the case. The amount of compensation, if any, is also be determined taking into account all of the circumstances of the case, including the matters set out in s 392(2). In this matter, as I discuss further below, taking into account all of the circumstances of the case and some of the matters set out in s 392(2), I consider there are several factors which limit the amount of compensation it is appropriate to award Ms Lord. However, taking into account all of the circumstances of the case I do consider it appropriate to make an order for payment of compensation to Ms Lord.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Lord in lieu of reinstatement including:
a.the effect of the order on the viability of Millet’s enterprise;
b.the length of Ms Lord’s service;
c.the remuneration that Ms Lord would have received, or would have been likely to receive, if she had not been dismissed;
d.the efforts of Ms Lord (if any) to mitigate the loss suffered because of the dismissal;
e.the amount of any remuneration earned by Ms Lord from employment or other work during the period between the dismissal and the making of the order for compensation;
f.the amount of any income reasonably likely to be earned by Ms Lord during the period between the making of the order for compensation and the FW Actual compensation; and
g.any other matter that the Commission considers relevant.
I consider each of these matters below.
For completeness, I note that s 392(4) provides that the amount ordered 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.
The amount must not exceed the lesser of half the high-income threshold immediately before the dismissal, which was $87,500.00, or the amount of total remuneration received by the person or to which the person was entitled for any period of employment with the employer during the 26 weeks immediately before the dismissal. In Ms Lord’s case, it was confirmed in evidence that she was paid $33.20 per hour working 35 hours a week, or $1,162.00 per week immediately prior to her dismissal. On this basis, in the course of the preceding six months, Ms Lord would have earned about $30,212.00.
Effect of the order on the viability of Millet’s enterprise
Mr Wu confirmed in his evidence that the changes he has made to his business has improved its financial performance. The order of compensation I intend to make in this matter is minimal and I do not consider it will have an effect on the viability of Millet’s enterprise that warrants a discount or reduction.
Length of Ms Lord’s service
Ms Lord was employed by Millet for about 4 years and 7 months. This is a reasonable period of service but, taking into account the other factors I must consider, Ms Lord’s period of service does not bear significantly on the order of compensation that is appropriate in this matter.
Remuneration that Ms Lord would have received, or would have been likely to receive, if Ms Lord had not been dismissed
In determining the remuneration that Ms Lord would have received, or would have been likely to receive, I am required to address myself to the question of whether if Ms Lord’s employment had not been terminated, the employment would have been likely to continue or would have been terminated at some time by another means, and in doing so, make an assessment as to the anticipated period of employment[18].
My assessment as to Ms Lord’s anticipated period of employment is that it was likely to be extremely minimal. Ms Lord’s role was made redundant in May 2025. Even if her employment had been terminated fairly (which it was not) it would not have continued long past this time because the role no longer existed.
However, as I have explained throughout this decision, Millet was obliged to consult with Ms Lord and should have done so in May 2025 when Mr Wu was contemplating making the role of Housekeeping Supervisor redundant.
We do not know what the product of consultation between Ms Lord and Millet would have been. At the risk of undervaluing the benefit of consultation in circumstances of redundancy, including in respect to how sensible discussions taking into account employee feedback can often assist to mitigate the effect of operational changes, it seems to me unlikely that consultation would have avoided the redundancy in this matter, and likely that Ms Lord would have been notified, following the consultation that should have happened, that her role with Millet was terminated.
However, such a consultation should have included a discussion, and proper consideration being given to Ms Lord’s feedback. An appropriate amount of time for such a process to occur, taking into account the nature and size of the business, is one week. This may have meant that Ms Lord was provided with notice of termination of employment from 4 June 2025, not 26 May 2025, and her notice period would have therefore continued through to 2 July 2025, instead of ending on 24 June 2025. In other words, the consultation I consider should have happened may have caused the employment to continue for one week more than it did.
In some circumstances, Ms Lord may have also been entitled to a severance payment. However, Millet is a small business and accordingly, the entitlement does not apply[19].
Efforts of Ms Lord to mitigate the loss suffered by Ms Lord because of the dismissal
It does not appear to be in dispute that Ms Lord sought to obtain alternative employment after her job with Millet ended, and succeeded in doing so, commencing a new job on 14 July 2025. I consider she made immediate and successful efforts to mitigate the loss she suffered as a result of the dismissal.
Amount of remuneration earned by Ms Lord from employment or other work during the period between the dismissal and the making of the order for compensation
Ms Lord’s new job is a casual engagement. She said she is earning about $450.00 per week from this role, having started on 14 July 2025. Accordingly, since dismissal Ms Millet will have earned about $4000.00.
Amount of income reasonably likely to be so earned by Ms Lord during the period between the making of the order for compensation and the actual compensation
It appears Ms Lord will continue to earn about $450.00 per week in her new role.
Other relevant matters
Ms Lord’s dismissal, which I consider on balance to have been unfair, has resulted in her loss of permanent employment – she is now engaged on a casual basis. Her income has been reduced by more than half. With this in mind, I do not consider the remuneration she has earned since dismissal or is likely to earn before compensation is paid to her should offset against the award of compensation I intend to make in this matter.
Calculation of compensation
Often the methodology used in Sprigg v Paul Licensed Festival Supermarket[20] is used to calculate the order of compensation that might be made, although it is not mandatory this formula be used[21]. In this matter, I consider that, taking into account the considerations set out in s 392(2) (as I have) the calculation of compensation I intend to order Millet to pay Ms Lord is straightforward. The amount is one weeks' pay, calculated at $1,162.00 less taxation as required by law, plus an amount of superannuation as set out below. I consider this level of compensation is appropriate having regard to all the circumstances of the case[22].
Compensation order
Given my findings above, I will make an Order that Millet must pay Ms Lord $1,162.00 less taxation as required by law, plus a superannuation contribution into her nominated fund of $133.63, within 14 days of the date of this decision. An Order[23] will issue to that effect.
COMMISSIONER
Appearances:
Ms Hayley Lord, appearing on her own behalf
Mr Xavier Wu, appearing for the Respondent
Hearing details:
2025
Melbourne
September 23
[1] Fair Work Act 2009 s 382
[2] Ianello v Motor Solutions Australia Pty Ltd[2010] FWA 3125; Paula Groszek v Toyvision International Pty Ltd [2015] FWC 697; Rajnesh Sharma v GTS Australia Pty Ltd[2020] FWC 6556 [28]; Francis Parriman v Waardi Limited [2024] FWC 914 [24]
[3] Mary-Ann Bowler v Trojan Wake Ski and Snow Pty Ltd [2023] FWC 2871 [20]
[4] Kauri Taumaunu v United Personnel Traffic Pty Ltd[2025] FWCFB 181 [34]
[5] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591; cited in Re Model Terms for Enterprise Agreements and Copied State Instruments [2025] FWCFB 39; see also CFMEU v Mt Arthur Coal[2021] FWCFB 6059 [108]
[6] See Adams v Diamon Beach Holdings Pty Ltd (t/a Therapy Care)[2025] FWC 2095 [117] – [118]
[7] Fair Work Act 2009 s 385(b)
[8] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]
[9] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 [373]
[10] UES (Int’l) v Leevan Harvey [2012] FWAFB 5241; Darrell Kay v Fulton Hogan Construction Pty Ltd [2025] FWC 330 [79]
[11] Newton v Toll Transport[2021] FWCFB 3457 [182]
[12] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]
[13] Anita Cachia v Scobel Pty Ltd ARF the S&I Trust t/a Emerse Skin & Laser [2018] FWC 2648 [88]
[14] Pecker Maroo Verano Pty Ltd v Stevens[2024] FWCFB 147 [110]
[15] UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 [47]; Darrell Kay v Fulton Hogan Construction Pty Ltd [2025] FWC 330 [79]
[16] UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 [48]; Willian Gosling v Marine Manning Services Pty Ltd [2018] FWC 25 [66] – [69].
[17] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6] – [7]
[18] He v Lewin [2004] FCAFC 161 [58]
[19] FW Act s 121(1)(b)
[20] (1998) 88 IR 21
[21] Hanson Construction Materials Pty Ltd v Darren Pericich[2018] FWCFB 5960 [39]
[22] Fair WorkAct 2009 s 392(2); Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 [17]
[23] PR791736
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