Nathan Leslie Giblett v Powerstack Australia Pty Limited - [2025] FWC 2208

[2025] FWC 2208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Leslie Giblett
v

Powerstack Australia Pty Limited

(U2024/14726)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 JULY 2025

Application for an unfair dismissal remedy – whether genuine redundancy – no genuine redundancy – dismissal unfair – compensation ordered.

Mr Nathan Giblett (the Applicant) was employed by Powerstack Australia Pty Ltd (the Respondent or Powerstack) until he was dismissed on 29 October 2024 by reason of redundancy.

The Applicant made an application under s.394 of the Fair Work Act 2009 for a remedy, alleging that he had been unfairly dismissed by the Respondent.

The Respondent objected to the application on the grounds that the dismissal was a case of a genuine redundancy.

The Commission must determine, by virtue of s.396 of the Act, the question of whether the dismissal was a genuine redundancy before considering the merits of the application.

At the hearing the Applicant represented himself and Ms B Sundaraj appeared with permission for the Respondent.

For the reasons set out below, I find that the Applicant’s dismissal was a not a case of genuine redundancy and the Applicant was unfairly dismissed. I have awarded the remedy of compensation.

Background

The Applicant was the co-founder of the Respondent, a business he started with his brother in 2009. He also served as a director of the Respondent from its establishment in 2009 until October 2024.

In 2021, the Applicant secured financial investment from Taronga Group to expand the business. This investment was subject to various conditions, which ultimately resulted in the Applicant and his brother losing control of the company.

Following the initial round of investment by Taronga Group in October 2021, the Applicant entered into an Employment Agreement for the position of Managing Director Australia.

On 1 December 2023 Mr Michael Bragg, formerly Global Head of Sales, was appointed as Chief Executive Officer. Around the same time, the Applicant and his brother stepped down from their respective CEO roles in Australia and the United States and assumed roles involving research and development (R&D).

While there were some inconsistencies in the description of the Applicant’s role over time, it is not disputed that at the time of his dismissal he was primarily engaged in tasks that included research and development.

On 29 October 2024, the Applicant was informed of his redundancy during a meeting. He was subsequently provided with a termination letter, which relevantly stated:

“As discussed with you in our meeting on 29^th of October 2024, we regret to inform you that as a result of significant restructuring required in order to remain viable into the future, the position of Joint head of R&D has been made redundant.

Powerstack Australia Pty Ltd ACN 135 088 247 (Company) no longer requires this position to be performed by anyone. We regret that this decision is necessary and is in no way a reflection on you or your performance within the business.

We have been working to identify an alternative role…

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 2208
Decision Date: 30 JULY 2025

CaseChat Overview and Summary

In the matter of Nathan Leslie Giblett v Powerstack Australia Pty Limited, Deputy President Dean has found that Mr Giblett's dismissal was not a genuine redundancy and was unfair. The Applicant, Mr Giblett, was dismissed by the Respondent, Powerstack Australia Pty Ltd, on 29 October 2024 on the basis of redundancy. Mr Giblett, who was the co-founder of the Respondent, was primarily engaged in research and development at the time of his dismissal. The Respondent argued that the dismissal was a genuine redundancy due to financial difficulties and a need to close the research and development division. However, the Court found that the Respondent failed to meet the consultation requirements under the Manufacturing and Associated Industries and Occupations Award 2020, and therefore the redundancy was not genuine.

The Court considered whether the Respondent no longer required Mr Giblett's job to be performed due to changes in the operational requirements of the enterprise. The Court found that the Respondent was experiencing financial difficulties and had decided to close the research and development division, which led to the termination of Mr Giblett's role. However, the Court also considered whether the Respondent had complied with the consultation provisions of the Award, which requires the employer to consult with affected employees about major workplace changes. The Court found that the Respondent had not provided Mr Giblett with written notification of the major change or an opportunity to be heard on measures to mitigate the impact of the redundancy. As a result, the consultation requirement was not met, and the redundancy could not be considered genuine.

The Court further considered whether it would have been reasonable in all the circumstances for Mr Giblett to be redeployed within the Respondent's enterprise. However, given the finding that the consultation requirement was not met, no further findings were required on redeployment.

The Court then turned to consider the merits of Mr Giblett's application for unfair dismissal remedy. The Court found that the dismissal was harsh, unjust, and unreasonable due to the lack of consultation and meaningful dialogue, which meant that Mr Giblett was not given the opportunity to engage in discussions and suggest alternatives to his redundancy or propose other options for cost-cutting. As a result, the dismissal was unfair.

In terms of the remedy, the Court ordered compensation for Mr Giblett in the amount of 7 weeks' salary, less appropriate taxation. This amount covers the period between the end of the notice period and the commencement of his alternative employment. The Court considered factors such as remuneration received or likely to be received, length of service, viability, mitigation efforts, and other relevant matters in determining the appropriate amount of compensation. The Court did not include a component for shock, humiliation, or distress in the compensation amount.

In conclusion, the Court found that Mr Giblett's dismissal was not a genuine redundancy and was unfair. The Court ordered compensation for Mr Giblett in the amount of 7 weeks' salary, less appropriate taxation.

Orders