Ron Lever v BSI Learning Institute Pty Ltd - [2025] FWC 1371

[2025] FWC 1371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ron Lever
v

BSI Learning Institute Pty Ltd

(U2025/1073)

DEPUTY PRESIDENT DEAN

CANBERRA, 16 MAY 2025

Application for an unfair dismissal remedy – whether genuine redundancy – application dismissed.

Mr Ron Lever (Applicant) was employed on a part time basis as a Trainer by BSI Learning Institute Pty Ltd (Respondent) from March 2019 until he was dismissed on 5 December 2024 by reason of redundancy. From December 2020, all of his work was performed at the South Coast Correctional Centre (the Centre). He claims his dismissal was not a case of genuine redundancy and that his dismissal was unfair.

The Respondent says that his role was genuinely redundant in that it no longer required his role to be performed, following a reduction in training hours required by the Centre. Further, it says it consulted with the Applicant and offered him redeployment which was rejected.

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 was represented by Ms King and the Respondent was represented by Ms Masters.

For the reasons set out below, I find that the Applicant’s dismissal was a case of genuine redundancy, and as a result he is not a person protected from unfair dismissal.

Background

The factual circumstances leading up to the Applicant’s dismissal are largely not in dispute.

The Respondent is an education business. It has a contract with Corrective Services NSW to deliver training to correctional centres in NSW. The Respondent’s unchallenged evidence was that this contract does not specify set training hours, and instead the training needs in each centre are determined by the particular centre from “block to block”. A block is a 10 week training cycle of which there are 5 in each calendar year. Each centre advises the Respondent by week 6 of the current block what training they require to be delivered for the following block of 10 weeks. From the time the contract commenced, the Respondent was assigned 40 training hours per week by the Centre. This was shared between the Applicant and another trainer, with the Applicant being allocated 24 face to face training hours per week.

The Applicant’s employment was covered by the Educational Services (Post-Secondary Education) Award 2020 (the Award). His role as a Trainer involved delivering classes to inmates at the Centre. He taught foundational skills such as reading, writing, arithmetic and information technology.

The Applicant was employed pursuant to an employment contract in which the Applicant was paid for 34 hours per week, made up of 24 hours face to face teaching and the balance as paid preparation time.

In August 2023 there was a drop in the overall training hours requested by the Centre from 40 to 28 hours per week. Documentary evidence was submitted by the Respondent to demonstrate this…

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 1371
Decision Date: 16 MAY 2025

CaseChat Overview and Summary

Ron Lever, a part-time trainer employed by BSI Learning Institute Pty Ltd, filed an application for unfair dismissal remedy, arguing that his dismissal on 5 December 2024 was not a genuine redundancy. BSI Learning Institute Pty Ltd maintained that the dismissal was justified due to a reduction in training hours required by the South Coast Correctional Centre, leading to a genuine redundancy of Mr Lever’s role. The central legal issue before the Commission was whether Mr Lever's dismissal was indeed a genuine redundancy under s.389 of the Fair Work Act 2009.

The Deputy President examined three key criteria to determine the genuineness of the redundancy. Firstly, it was established that BSI Learning Institute Pty Ltd no longer required Mr Lever's job to be performed due to changes in the operational requirements of the employer's enterprise. The evidence showed that the reduction in training hours requested by the Correctional Centre from 40 to 28 hours per week made Mr Lever's 34-hour-per-week position redundant. Secondly, the Deputy President found that the Respondent had complied with its consultation obligations under the Educational Services (Post-Secondary Education) Award 2020 by notifying Mr Lever of the potential major workplace changes and engaging in discussions with him. Lastly, the Deputy President concluded that it was not reasonable to redeploy Mr Lever within the employer's enterprise, as an alternative position was offered and subsequently rejected by Mr Lever.

The Deputy President dismissed the application, finding that Mr Lever's dismissal was a genuine redundancy. Consequently, Mr Lever was not protected from unfair dismissal, and his application was dismissed. An order dismissing the application was issued with the decision.

Orders