Kenneth Lee v Tactic Spaces Pty Ltd - [2025] FWC 1068

[2025] FWC 1068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kenneth Lee
v

Tactic Spaces Pty Ltd

(U2024/15425)

DEPUTY PRESIDENT LAKE

BRISBANE, 23 MAY 2025

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – operational requirements – jurisdictional objection upheld

Mr Kenneth Lee (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), stating that he was unfairly dismissed from his employment with Tactic Spaces Pty Ltd (the Respondent) on 13 December 2024.

A conciliation was held on 19 February 2025 and the matter was not resolved. The matter was listed for a hearing on 18 March 2025. The Applicant was self-represented. The Respondent was represented by Mr Benjamin Kidston of Counsel. I granted permission for the Respondent to be represented under s.596 of the Act noting there is factual complexity and legal complexity surrounding the admissibility of evidence.

Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant was made genuinely redundant. The jurisdictional objection will be considered before determining the merits of the matter.

Background

The Respondent is in the commercial leasing industry and provides office fitting and design services to both public and private sector clients.

The Applicant was employed in the role of Head of Operations from April 2024 until his dismissal on 13 December 2024. The Respondent described the duties involved in this role as including office management, some IT support and training and induction for new staff members.[1] The Applicant described his duties as follows:

a. Office administration duties such as monitoring resources, materials and equipment.
b. Control of the company’s creative direction.
c. Event planning and logistics.
d. IT and Tech Support for the entire office and all staff.
e. Onboarding, general training and offboarding for staff.
f. Direct report to multiple employees; and
g. Retained many of the previous duties I undertook while employed as analyst, some in a supervisory role.[2]

There are two matters which sit behind the current dispute. First, the Applicant is the brother-in-law of one of the Directors of the Respondent, Mr Meletios Petros Pikos. Second, the Applicant owns 5% of the shares in the Respondent, a private company.

The Respondent states that they undertook an operational review of the business in October 2024 and following this review, the Respondent identified that the role of Head of Operations was no longer required.[3] Many of the tasks the Applicant had been performing had been outsourced to external IT providers or had been subsumed by the employment of an Office Manager.

On 24 October 2024, the Applicant attended a meeting with Mr Pikos. The Respondent says the Applicant was informed during this meeting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1068
Decision Date: 23 MAY 2025

CaseChat Overview and Summary

In the matter of Kenneth Lee v Tactic Spaces Pty Ltd, the Fair Work Commission was required to determine whether the dismissal of the Applicant, Kenneth Lee, was a genuine redundancy. The Respondent, Tactic Spaces Pty Ltd, claimed that the dismissal was due to operational requirements and that the Applicant's role as Head of Operations was no longer required. The Applicant contested the genuineness of the redundancy, arguing that it was a response to his refusal to sell his 5% equity in the company. The Deputy President of the Fair Work Commission, Lake, considered the evidence and submissions from both parties and concluded that the dismissal was a genuine redundancy. The Deputy President found that the Respondent had established that the role of Head of Operations was no longer required due to changes in operational requirements in the Respondent’s business. The Deputy President also found that there was no formal requirement to consult with the Applicant as no modern award or enterprise agreement applied to him. Finally, the Deputy President found that it was not reasonable in the circumstances for the Applicant to be redeployed within the employer’s enterprise. Therefore, the Deputy President dismissed the Applicant's application for an unfair dismissal remedy.

Orders