Ron Lever v BSI Learning Institute Pty Ltd
[2025] FWC 1371
•16 MAY 2025
| [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 change in hours required. The Applicant’s hours of work changed as a result, in that he was only required to perform 16 hours of face to face teaching plus 8 hours of preparation time (ie 24 hours in total). The other trainer undertook the remaining hours, which involved a reduction from 16 to 12 face to face training hours per week as a result of the reduction in the Centre’s training requirements.
The Applicant disputes that the change in his work hours was a result of a drop in demand by the Centre for training, however, I am satisfied on the evidence that this was the reason for the change to his hours of work.
Despite the change in the number of hours he was required to teach, the Applicant continued to be paid for at least 34 hours per week (the Applicant’s evidence was in fact that he was paid for 36 hours per week) from August 2023 to December 2024. The Respondent said it continued to pay the Applicant for 34 hours per week because it anticipated the Centre would revert to requiring 40 training hours at some stage in the near future, however this did not eventuate.
On 15 November 2024 the Respondent sent the Applicant a letter in the following terms:
‘Commencement of Consultation – Major Workplace Change
I am writing to inform you that we are commencing a formal consultation process regarding a potential major change to our operations at BSI Learning. This consultation process is being initiated as part of a comprehensive review of the workplace structure and operational functions relative to the South Coast Correctional Centre. This process may lead to changes in the way we are operating and staffing requirements, including the potential for redundancies.
As a result of this review, there is a possibility that your current role may be impacted and could potentially be made redundant. The purpose of this consultation is to engage in an open dialogue with you regarding the proposed changes, explain the reasons behind the review, and explore any potential alternatives to redundancy, including redeployment or changes to your role. During this time, you will have the opportunity to ask questions, provide feedback, and discuss any concerns you may have.
In the coming days, we will schedule a meeting to begin the formal consultation, where we will provide you with more detailed information about the proposed changes and the potential impact on your role. We encourage you to consider any alternatives that could be proposed and will make every effort to support you throughout the process.
Please be assured that this process will be carried out in accordance with all legal obligations, and we will adhere to the principles of fairness and transparency. We understand that this news may be unsettling, and we are here to support you as we move through this consultation together.
If you have any immediate questions or concerns, or if you wish to discuss this matter before the scheduled meeting, please do not hesitate to contact me.’
On 26 November 2024 the Applicant participated in a meeting with representatives of the Respondent. He was accompanied by his union delegate. During the meeting, the Respondent restated the contents of the 15 November 2024 letter and indicated that an offer of alternative employment would be forthcoming.
On 28 November 2024 Mr Chan, the Respondents Chief Financial Officer, sent the Applicant an email in which an offer of an alternative position was made. In essence, it involved identical duties to what the Applicant had been performing, however the position was fixed term to the end of June 2026, provided for 24 hours per week (which is what he had been working since July 2023, albeit being paid for 34 hours), and did not include any payment for travel time or travel expenses. The hourly rate, however, was increased to $40 per hour in the offer. The Applicant was also offered an alternative, that being his position would end by reason of redundancy, and he would be paid a redundancy payment.
A further meeting occurred on 5 December 2024 during which the Applicant sought to negotiate a higher hourly rate of pay to $55 per hour, which was rejected by the Respondent. He was instead offered $41 per hour. The Applicant also asked for additional hours of work each week and this was also rejected.
The Respondent stated that the reason for it not agreeing to a higher rate of pay was that it was operating at a loss in relation to the Applicant’s employment and it was not commercially viable to do so.
The Applicant rejected the offer of the alternative position.
Later that day, the Applicant was sent a letter in which he was advised his employment was terminated, effective 10 January 2025, by reason of redundancy.
Consideration
Under s.385(d) of the Act a person is not unfairly dismissed if the dismissal was a genuine redundancy. The term ‘genuine redundancy’ is defined in s.389 of the Act:
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.
Therefore, there are three relevant matters for consideration in determining whether the Applicant’s dismissal was a case of genuine redundancy, namely:
1. Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise?
2. Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?
3. Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise?
The Explanatory Memorandum to the Fair Work Bill 2008 provides that a redundancy may be genuine where, for example, the employer only needs three people to do a particular task or duty instead of five, or where the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.[1]
Further, the process for selecting an individual employee for redundancy is not a relevant question as to whether the redundancy is a genuine redundancy.[2]
Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise?
As noted above, in considering the question of whether an employer ‘no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise’, it is well established that the test can be met when job functions are retained but are redistributed.
An employee’s job may be genuinely made redundant when the employee’s duties, or aspects of them, are still being performed by other employees.[3] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[4]
The reference to ‘changes in the operational requirements of the employer’s enterprise’ in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.[5] The operational circumstances of a business which may result in a redundancy are in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.[6]
In Ulan Coal Mines Limited v Henry Jon Howarth and others[7], the Full Bench said:
“[17]It is noted that the reference in the statutory expression is to a person’s ‘job’ no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee’ (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the ‘job’ of that employee no longer exists.
[18]In Kekeris v A. Hartrodt Australia Pty Ltd[8], Senior Deputy President Hamberger considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
‘When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.’”
[28] In Adams v Blamey Community Group[9], the Full Bench, in relation to s.389(1)(a), said:
“it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”[10] What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”
The Applicant contended that the job continued to be required to be performed for three reasons.
First, the Respondent engaged a relief teacher from the time the Applicant ceased performing work to March 2025. The Applicant argued this demonstrated that his job was required, otherwise no relief teacher would have been engaged.
Second, the Respondent advertised the Applicant’s job on 5 December 2024, the same day his position was made redundant.
Third, on 14 March 2025 during a Commission conference in relation to this application, the Respondent advised that the position in the job advertisement had been filled. The Applicant argued that if the Applicant’s job was no longer required, then there was no need to hire a person into that position.
The Applicant also contended that this situation was not a ‘change in operational requirements’ because there was no evidence of any comprehensive review having been undertaken as outlined in the 15 November 2024 letter to the Applicant, and because ‘financial and commercial challenges’ do not fall within the meaning of ‘changes in operational requirements’.
The Respondent contended that the Applicant’s position of 34 hours per week was no longer required to be performed. He had been paid for 34 hours per week from August 2023 to December 2024 despite the fact that he was only working 24 hours per week. The increase in training hours back to 40 per week that the Respondent had hoped would eventuate had not occurred. It was not economically feasible for the Respondent to continue to pay the Applicant for 10 hours per week that he was not required to work (because the Centre determines what training it requires) and as a result the decision was made to restructure the Applicant’s role as it no longer had 34 hours of work for the Applicant.
Mr Chan also gave evidence that two trainers were required at the Centre because the time at which they might be required to provide training to inmates would in part overlap. In other words, they were conducting training at the same time.
Having considered the evidence and submissions, I am satisfied and find as follows:
a. The Applicant’s “job” was a 34 hour per week part time position.
b. The Respondent did not require the Applicant’s job to be performed by anyone because of changes in its operational requirements. The evidence is clear that the 34 hour per week role the Applicant held was no longer required in that the training hours required by the Centre had reduced in August 2023. There is no question based on the cases cited earlier that a reduction in hours can be an ‘operational change’.
It is unnecessary for the Respondent to have undertaken a ‘comprehensive review’ of its operations in order for the Applicant’s redundancy to be genuine. What is clear in this case is that there were only two trainers located at the Centre and both were affected by the reduction in training hours required by the Centre. Likewise, it was not necessary for the Respondent to provide to the Applicant information about a partial share sale of the Respondent’s business that may have triggered a review of whether particular positions in the Respondent’s organisation were profitable or viable.
c. The case law cited earlier makes it clear that it is not to the point that another operational decision might have been available to the Respondent. To that extent I reject the Applicant’s assertion that the redundancy was not genuine because it could have taken hours from the other trainer and given those hours to the Applicant. This would have been impractical in any case because there were times when two trainers were required to provide training at the same time.
d. The Applicant contended it was harsh that the Respondent had waited until December 2024 to act, when the change in circumstances occurred in August 2023. I consider the opposite is true, in that the Applicant had the benefit of being paid for 34 hours per week for a period of almost 15 months when in fact he was only required to work 24 hours per week.
e. I do not accept that the content of the job advertisement is relevant to whether the redundancy was genuine, in the face of the Respondent’s evidence about why it advertises a particular way, and most importantly because the job that was filled was on fundamentally the same terms that were offered and rejected by the Applicant.
Further, the job advertisement is not evidence of some other role that the Applicant was not offered. There is no evidence to support the existence of another role, other than the one the Applicant rejected.
Finally, I do not accept the Applicant’s assertion that he was made redundant because of his pay and entitlement enquiries. The evidence does not support such a conclusion. I also accept the Respondent’s evidence that it is difficult to get good trainers in locations where correctional facilities are often located.
Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?
Clause 29 of the Award deals with consultation as follows:
29.Consultation about major workplace change
29.1If 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.
29.2For the purposes of the discussion under clause 29.1(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.
29.3Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
29.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).
29.5In clause 0 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.
29.6Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.
In this case, I am satisfied that the Respondent met its obligations to consult. It gave written notice to the Applicant on 15 November 2024, held discussions with him and his representative, and agreed to a slightly higher hourly rate of pay following a request by the Applicant. The evidence is clear that the Applicant had the opportunity to discuss the restructure and propose alternatives.
I do not agree with the Applicant that the fact the Respondent advertised a training role on the same day the Applicant rejected the offer of redeployment meant the consultation was not genuine.
Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise?
As set out earlier, s.389(2) provides that a person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.
For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[11] The word ‘redeployed’ in section 389(2) of the Act should be given its ordinary and natural meaning, which is to ‘transfer to another job, task or function’.[12]
To the extent there was another position available, that being a fixed term contract for 24 hours per week, this was offered to the Applicant and rejected by him.
I do not accept the Applicant’s submissions to the effect that “continuing to employ the Applicant in the same position was ‘perfect’ redeployment”. This is because I accept the 34 hour per week job the Applicant held was no longer required.
Much was made by the Applicant that the job advertisement indicated a salary range higher than what the Applicant was offered. I accept the evidence of the Respondent that this was a strategy to draw increased candidates, and it did in fact employ someone on $40 per hour which was what was offered to the Applicant.
There was no suggestion from either party that there was any other nearby location or position that the Applicant could have been redeployed to.
Conclusion
For the above reasons, I am satisfied that the Applicant’s employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act.
As a result, the Applicant is not an employee who is protected from unfair dismissal and his application under s.394 of the Act must be dismissed. An order dismissing the application (PR787403) will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms N. King, legal representative from Lander & Rogers, for the Applicant.
Ms S. Masters, legal representative from Edge Legal.
Hearing details:
2025
12 May
Via Microsoft Teams Video
[1] See Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1548.
[2] See ibid at paragraph 1553.
[3] Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5.
[4] Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 at [27].
[5] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496 at p. 373.
[6] Kieselbach v Amity Group Pty Ltd PR973864 at [34].
[7] [2010] FWAFB 3488.
[8] [2010] FWA 674.
[9] [2016] FWCFB 7202.
[10] [2014] FWC 7829 at [16]
[11] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36].
[12] Ibid at [25].
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