Tatiana Lepina-Lavrinovich v Corporate Travel Management Limited
[2025] FWC 1000
•9 APRIL 2025
| [2025] FWC 1000 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tatiana Lepina-Lavrinovich
v
Corporate Travel Management Limited
(U2024/15293)
| COMMISSIONER SIMPSON | BRISBANE, 9 APRIL 2025 |
Application for an unfair dismissal remedy – jurisdictional objection genuine redundancy – Objection made out – Application dismissed.
On 19 December 2024, Ms Tatiana Lepina-Lavrinovich (Ms Lepina-Lavrinovich / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Corporate Travel Management Limited (the Respondent). The Respondent objected to the application as it said the Applicant’s dismissal was a case of genuine redundancy.
I listed the matter for a directions hearing on 20 February 2025. The matter was listed for hearing on 7 April 2025.
At the commencement of the hearing on 7 April 2025 it was agreed that the matter would be best dealt with as a determinative conference rather than as a hearing. The Applicant provided evidence on her own behalf and Mr David MacNiven, Global Chief Information Officer (Global CIO) and Ms Lucy Hughes provided evidence on behalf of the Respondent. All three witnesses were sworn in and gave evidence concurrently. The Applicant adopted her two statements, found at page 25 to 27 of the Court Book[1], and at pages 31 to 32 of the Court Book.[2] Ms Hughes adopted her statement at pages 78 and 79 of the Court Book[3] and Mr MacNiven adopted his witness statement at pages 71 to 73 of the Court Book.[4]
The Applicant appeared at the hearing on her own behalf. The Respondent was represented by Ms Hughes.
Background
The Respondent is an ASX listed company with operations globally that provide travel management services to corporate and government clients. In 2023, the business identified the opportunity to reduce internal costs and improve efficiencies by streamlining and outsourcing parts of its internal support services to a third-party provider (the Project). The Project was publicly announced in November 2023 and commenced in January 2024. The Project is called Project Atlas and involves the Finance, Data, ICT and Security functions.
The Respondent submitted that the Project is designed to help it focus on driving overall business performance to maximise value for our customers, employees, partners, and shareholders in partnership with an organisation called WNS. The Applicant’s role was made redundant as part of the Project. As part of this process, a number of roles globally at the Respondent transitioned to WNS in India, an overseas location.
The Respondent submitted that information has been shared across the Respondent company about Project Atlas throughout 2024, which involved ongoing consultation and support for The Applicant and all roles impacted by Project Atlas.
On 18 September 2024, more formal consultation commenced, with a group meeting with ANZ CEO Greg McCarthy in which the Applicant was present.
The Applicant submitted that on 22 November 2024, she was informed that her role as a .NET Software Developer was no longer required due to the decision to outsource the position to India.
On 25 November 2024, following the group meeting, an individual consultation meeting was held with the Applicant. In attendance at this meeting was the Applicant’s direct manager, Mr Bulent Polat, Business Intelligence Manager, and Ms Isabella O’Dea, HR Advisor. The Applicant was offered a support person to attend this meeting however she declined this offer. In this meeting the Applicant was advised of the following:
· Following a review of the responsibilities of the Data Management team, it was proposed that her work would be undertaken by WNS resources.
· That her role of .Net Developer was at risk of redundancy, and that she had until close of business 26 November 2024 to provide feedback during this consultation time period.
Following the meeting the Applicant provided feedback that she had requested a reclassification of her role in June 2024 and subsequently in August 2024. The Applicant did not provide feedback regarding the redundancy of her role and the redistribution of her current work to WNS.
On 5 December 2024, an outcome meeting was held with the Applicant. In attendance was Mr Polat and Ms O’Dea. The Applicant was again offered a support person for this meeting which she also declined. It was discussed in the meeting that:
· The duties of the .Net Developer role would be transitioned to WNS in accordance with the global Project Atlas transition activities.
· A review of the role was undertaken, including evidence the Applicant presented, and it was confirmed that the role she was performing within CTM was that of a .Net Developer and the role had no responsibilities in addition to that. As such, a reclassification of her role would not be undertaken.
· That the role of .Net Developer was no longer required and the Applicant would be terminated by way of redundancy on 6 December 2024.
· Redeployment opportunities were also considered during this time.
On 5 December 2024, the Applicant’s role officially ceased. She was paid 5 weeks wages in lieu of notice and 7 weeks redundancy pay.
Relevant legislation
Section 385 of the Act states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Section 389 of the Act states:
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.
Consideration - Genuine Redundancy
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
The Respondent referred to the case of Dibb v Commissioner of Taxation[5] which stated that an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by another employee, or other employees.[6]
The Respondent submitted that in June 2024, as part of the Transformation Project, the Respondent’s Global CIO, Mr MacNiven initiated a review of the then current positions against future focused activities of the Global Data Management team to align with the Respondent’s five-year strategy (CIO Review). Mr MacNiven requested that remaining employees in the Global Data Management team email their direct managers with an outline of their current activities. The Applicant was employed in the Global Data Management team as a .Net Developer since 22 April 2021.
The Applicant submitted that she performed complex, senior-level tasks that continued to exist within the Respondent after her redundancy. Her evidence was that her role involved complex technical knowledge, internal systems integration, organisation-specific processes and work with sensitive information of Whole-of Australian-Government (WoAG) that could not be replicated or maintained in India without significant disruption and risk.
In accordance with the CIO Review, on 20 June 2024 the Applicant emailed her manager with the following duties she was undertaking:
(a)provide ongoing maintenance and support for the CTMDataHub
(b)educate the employees of the Transformation Project provider on using specific tools, processes, or systems related to CTMDataHub management including explaining the quality assurance process (a process for testing to preventing quality failures); and
(c)develop and maintain a simulated database environment for the Transformation Project provider’s testing purposes.
Following the CIO Review, the Respondent submitted that it determined that the Applicant’s duties in (a) above would be absorbed by the Transformation Project provider and the duties in paragraphs (b) and (c) above would no longer be required. Any other work the Applicant may have undertaken in her job was to be undertaken by the remainder of the Global Data Management team.
The Respondent’s position was that as a result of the Transformation Project, the job previously performed by the Applicant was no longer required by the Respondent.
The Applicant made submissions on the appropriateness of the business decision made by the Respondent, noting the nature of the work involved in the CTM Data Hub projects included handling sensitive Whole-of Australian-Government (WoAG) data, particularly concerning financial and travel information. This type of data is governed by strict confidentiality and Australian data sovereignty obligations. Under established government protocols and best practice standards, foreign companies—especially those located outside Australia—are generally not granted access to such data due to national security and privacy considerations. Accordingly, it would not have been appropriate or lawful to transfer such WoAG data to a third-party offshore entity such as WNS in India. Ultimately whether the Respondent’s decision in relation to s.389(1)(a) was a good decision or not, is not relevant.
During her evidence the Applicant did not formally concede that she did not rely on s.389(1)(a) as part of her case, although it became clear that the Applicant could not provide evidence that her former role, being the bundle of tasks and responsibilities she fulfilled in her role as a .Net Developer, still existed as an ongoing role.
Mr MacNiven said the requirements of the Applicant’s role as a .Net Developer being performed was purely from a front end perspective and was never a Full Stack. Mr MacNiven said the Respondent was still going through an assessment of what the outsourced provider could provide to the Respondent and what the business needs were. Mr MacNiven said the Full Stack .Net Developer is in the Chief Technology Officer (CTO) world, where there is a need for that kind of high-level technical build, however the Respondent did not need that going forward and hence why the .Net Developer position was made redundant.
The Applicant maintained that her responsibilities had widened since the time of commencement, and what the Respondent regarded as the responsibilities of her role, did not align with what she really did in her role.
Mr MacNiven said part of the tasks were outsourced to India, some of the tasks were redistributed to multiple existing people within the team as maintenance tasks, and some were discontinued as they were no longer required. I put Mr MacNiven’s evidence to the Applicant. The Applicant said this was impossible, and she couldn’t understand a situation where the tasks she performed were not being performed.
The Applicant was unable to provide any compelling evidence to dispute that Mr MacNiven’s explanation of what had happened to her former role was not correct, other than to say that the Respondent initially said the whole role was to be outsourced to India and now the Respondent was saying only some it has been. Even if that is correct, it is sufficiently clear that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the enterprise.
The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy
The Respondent submitted that no Enterprise Agreement applied to the Applicant’s employment, however the Applicant was covered by the Professional Employees Award 2020 (the Award).
Clause 25 of the Award requires consultation after 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 phrase “significant effects” is relevantly defined to include “termination of employment”.
The Respondent submitted that it undertook the following consultation process in compliance with clause 25 of the Award:
(a)On 18 September 2024, a group meeting was held with the ANZ Chief Executive Officer who gave notice to the attendees that the organisational restructure of a number of functions including the Global Data Management team would be reviewed as a result of the Transformation Project. Following this meeting, an email was sent to all attendees confirming the details in writing.
(b)On 25 November 2024, an individual consultation meeting was held with the Applicant, her direct manager and a representative from Human Resources. The Applicant was advised that it had been proposed her work would be partially absorbed by the Transformation Project provider and partially absorbed by the Global Data Management team. As a result, her position of .Net Developer may no longer be required in its current form and was at risk of redundancy. The Applicant was asked to provide feedback on the proposed changes and was also given a letter that summarised what was discussed at the consultation meeting.
(c)Following the meeting, the Applicant emailed Human Resources and advised that she had previously requested a reclassification of her role in June 2024 and again in August 2024. The Respondent did not provide any feedback regarding the proposed changes to her job, however, the emails had been taken into consideration when the Respondent considered redeployment opportunities for the Applicant.
(d)On 5 December 2024, an outcome meeting was held with the Applicant, her manager and Human Resources. In the meeting, the Applicant’s manager and Human Resources communicated the following:
(i)the duties of the .Net Developer role would be absorbed by the Transformation Project provider;
(ii)the role of .Net Developer was no longer required and the Applicant would be terminated by way of redundancy effective on 6 December 2024;
(iii)the Respondent took steps to consider redeployment opportunities. However, after taking into consideration her skills and experience, there were no genuine redeployment roles available; and
(iv)the Respondent had engaged the services of LEE HECHT HARRISON, an outplacement and talent development services, to provide support services to all employees that were made redundant as part of the Transformation Project.
(e)On 5 December 2024, immediately following the meeting, a formal notice of redundancy was provided to the Applicant.
The Respondent submitted that in accordance with clause 25.1 of the Award:
(a)the Respondent gave notice of the change to all employees who may be affected;
(b)discussed the changes, its likely effect on the Applicant and sought feedback from the Applicant to reduce the adverse effects of the changes on the Applicant; and
(c)commenced discussion as soon as practicable after a definite decision was made.
The Respondent submitted that furthermore, in compliance with clause 25.2 of the Award, the Applicant was provided with written letters containing all relevant information at each step of the consultation process.
Throughout the process, as with all employees who have been impacted by Project Atlas, the Applicant has been provided with extensive consultation and advice, including access to a dedicated “Business Readiness Hub” which included information on the Project, Project Timelines, employee support that was available, and details where the Applicant could access further information regarding the Project.
The Applicant submitted that the Respondent’s consultation appeared to be a procedural formality and not a meaningful dialogue, evidenced by the refusal to engage with her detailed submission regarding redeployment. The Applicant contended that while the Respondent claims consultation occurred, in contrast, she asserted it was superficial and predetermined as her first consultation occurred after positions had already been advertised and shortlisting commenced.
The Applicant said that the Respondent asked her for feedback as part of the consultation process by 26 November 2025, however on 26 November she was on sick leave, and she provided a medical certificate.
Ms Hughes said the Applicant had responded to the offer for feedback as part of the consultation process prior to 26 November 2024. The consultation period closed on 26 November 2024. This was in the form of several emails which the Applicant sent to the Respondent, which were before the Commission. Ms Hughes said the outcome meeting for the Applicant was delayed to 5 December 2024 as she had been unwell.
Ms Hughes said the Respondent considered the Applicant’s feedback and had also considered the Applicant for two redeployment options, which are referred to in greater detail below. Ms Hughes said the Respondent tries to redeploy employees whose position becomes redundant wherever possible, and this Transformation Project was impacting across several business units. Her evidence was that the Respondent has successfully redeployed other people previously.
It is apparent that the Respondent told the Applicant about the proposed change and provided her with an opportunity to provide her views about the impact of the proposed change on her, which the Applicant did. I am satisfied from the evidence that the Respondent has complied with any obligation in the Award to consult about the redundancy.
Redeployment - is it ‘reasonable in the circumstances’ for the employee to be redeployed within the employer’s enterprise or associated entity?
Overview
In Ulan Coal Mines Limited v A. Honeysett & Ors[7] it was held that the question posed by s.389(2) was whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. Relevant factors included the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.
The Respondent submitted that there were no opportunities for redeployment as the purpose of the Transformation Project was to streamline and transition jobs that required the Applicant’s skills, qualification and experience, to the Transformation Project provider.
The Respondent submitted that it took all reasonable steps to consider whether there were any opportunities for redeployment and determined that there were no roles available for the Applicant in the Respondent’s enterprise or an associated entity of the Respondent.
The Applicant submitted that there was no consideration of redeployment when she was notified of the redundancy of her role. She submitted that despite raising the issue of alternative roles, she alleged she was dismissed without a proper internal review or redeployment effort. The Applicant submitted that during the second consultation meeting, she raised the issue of redeployment again with Ms O’Dea and Mr Polat, but her concerns were dismissed, and no meaningful discussion occurred.
Reclassification of current role
The Applicant submitted that she had proactively and long requested her position be reviewed and upgraded to reflect her expanded responsibilities and actual role. Instead, she alleged that the Respondent used the redundancy process to avoid reclassification and appropriate remuneration.
The Applicant submitted email correspondence between herself and management at the Respondent which she said demonstrates her repeated efforts to request a review of her role, raise concerns about misclassification, and seek consideration for redeployment prior to being made redundant. She submitted that these emails are critical to understanding the timeline of events and the Respondent’s failure to engage in meaningful consultation or proper assessment of alternative roles. The emails were dated 26 June 2024, 29 August 2024 and 25 November 2024.
The Applicant submitted that these communications were made in good faith and well in advance of any formal consultation about redundancy. She contended that they serve as direct evidence that her concerns were brought to the attention of senior management, and that no genuine steps were taken to assess internal redeployment options or correct the misclassification of her role.
The Respondent submitted that managers responsible for the roles available reviewed the Applicant’s position over the last six months. One of those managers had been on extended personal leave and as such, conversations have been undertaken with the Applicant’s current manager, Mr Polat, and Mr MacNiven. Both confirmed that the responsibilities that the Applicant was undertaking were those of a .Net Developer only. The Respondent contended that it was determined that Senior roles were not a suitable redeployment opportunity for the Applicant.
Vacant position – comparison of roles
The Applicant’s evidence was that she emailed all relevant documents and evidence to Ms O’Dea prior to the second consultation held on 6 December 2024. In her view, the tasks and technologies listed in her email were identical to those described in the vacancy for Senior Backend .NET Engineer (the Vacant Role), demonstrating a clear overlap.
The Applicant’s evidence was that prior to the initial consultation, she observed that the company had advertised several positions that closely matched her responsibilities but were titled Senior Backend .NET Engineer.
The Respondent submitted that as part of the consultation process, it reviewed existing roles for redeployment including the single Vacant Role within the Technology Team. Ms O’Dea confirmed in an email to the Applicant that there were not multiple roles but only one Vacant Role that was being advertised in different states. The Vacant Role was in the ANZ Technology team and was unrelated to the Applicant’s .Net Developer role within the Global Data, ICT and Security team. The Respondent submitted that this was a different team than the Applicant was in, as the Applicant was in a Global role. This ANZ role would report to the ANZ Chief Technology Officer (ANZ CTO).
Mr MacNiven’s evidence was that the Applicant was not considered for the Vacant Role redeployment opportunity within the ANZ Technology Team due to the significant difference in skills and experience required for the role compared to those of the Applicant’s .NET Developer position. His evidence was that the Vacant Role demanded a high level of expertise in multiple areas that the Applicant had not demonstrated, and it was also a more senior position than the Applicant’s then current role.
On 14 November 2024, Human Resources contacted the ANZ CTO to compare the position description of the Applicant and the Vacant Role and discussed the possibility of the Applicant being redeployed. The ANZ CTO was not satisfied that the Applicant could meet the requirements of the Vacant Role as it was more senior and required a higher level of experience and skills. The ANZ CTO also advised that any potential applicant for the Vacant Role would be required to undertake all responsibilities with limited guidance immediately from commencement. The ANZ CTO’s assessment was also verified by the Talent Acquisition Lead who separately reviewed the Applicant’s CV, her position description and the requirements of the Vacant Role.
On 26 November 2024, a meeting was held between Human Resources, Mr MacNiven and Mr Bulent to discuss the Applicant’s eligibility for the Vacant Role and the assessment made by the ANZ CTO and Talent Acquisition Lead. During the meeting, the Applicant’s emails sent in June 2024 and August 2024 requesting to be reclassified were taken into consideration. It was determined that the Applicant did not have the requisite skills, qualification and experience and as such was not eligible for redeployment into the Vacant Role.
The Respondent submitted that in consultation with its Talent Acquisition Lead, who was working to fill the vacancy, and Mr Polat, a review the Applicant’s resume on file and a review of the current position description, it was determined that the Vacant Role would be a promotion instead of a true redeployment for the Applicant. The Applicant was advised of this outcome.
The Applicant submitted that s.389(2) requires an employer to demonstrate that redeployment was not reasonable in all circumstances. Her position was that the Respondent claims the Vacant Role was “greater in seniority” and a promotion. However, the Applicant submitted:
· She had repeatedly provided management and HR with clear, documented evidence since 2023 that her role already encompassed all the responsibilities and technologies listed in that position.
· The Applicant provided a document that includes detailed evidence showing overlap in tasks and capabilities.
· The Respondent had her resume, evidence of work performed, and internal communications outlining her suitability.
· The refusal to consider her for the role because it would have been a “promotion” fails the test under s.389. It does not negate the obligation to consider redeployment, especially where the individual already performs those higher duties in practice.
· The fact that the role was actively advertised, and she was not offered an interview, demonstrates a lack of genuine effort.
In the Applicant’s submission, the Respondent’s own statement that the alternative role would have been a “promotion” effectively concedes that a suitable role existed. Her view was that this reinforces the obligation to consider redeployment under s.389(2), especially where the duties of the alleged ‘promotion’ role directly mirrored the actual work she had been undertaking.
Readvertising of roles
The Applicant submitted that when she inquired about the Vacant Role, she was told it had expired. However, on 27 November 2024, the same position was reopened. She contended that this raised questions about the company’s genuine intent to consider redeployment and indicated an ongoing business need for her skills, undermining the redundancy claim.
The Applicant submitted that vacancies that substantially matched her skillset and duties were advertised internally and externally under the title of the Vacant Role. In her view, these roles reflected the exact scope of work she had performed and were reopened just days after her redundancy consultation commenced. In her view, this strongly indicated that her job or a substantially similar job, remained available but was relabelled to avoid redeployment obligations.
The Respondent denied that it manipulated the advertisement of the Vacant Role. The Respondent submitted that this role was initially advertised on 24 October 2024, and the advertisement expired on 24 November 2024. The advertisement was refreshed on the Respondent’s internal careers page on 27 November 2024 as the Talent Acquisition Lead was still undergoing shortlisting and interviews with external candidates.
The Respondent indicated that the Applicant requested information regarding the Vacant Role on 3 December 2024 and was provided with the vacancy advertisement link. The Applicant was advised that recruitment of the role was at interview and shortlisting and that should she wish to apply and be considered, she could email the Talent Acquisition Lead directly. The Applicant did not contact the Talent Acquisition Lead regarding the role at any stage either before or after the outcome of redundancy meeting.
The Respondent submitted that the Applicant emailed Ms O’Dea following the outcome of redundancy meeting on 5 December 2024 and was advised again that it was determined not to be a suitable redeployment opportunity.
Remuneration level of Senior Backend .Net Engineer Role
It was apparent from the evidence that at the time of termination, the Applicant was earning a salary of $130,590.72 in her role that was made redundant. The evidence of Ms Hughes was that at the time the Vacant Role was advertised, it was intended to be paid a salary of between $150,000 to $160,000 however ultimately the salary paid to the person who filled the role was higher than $160,000. The Applicant said she did not know the salary that was attached to the role.
It is clear the advertised position attracted a salary more than $30,000 above the salary paid to the Applicant in her role at the time it was made redundant. This supports the Respondent’s case that the role was at a higher level of skill and responsibility than the Applicant’s role, and the Respondent was entitled to advertise the position and was not required to offer it to the Applicant as a redeployment option.
I asked the Applicant why she did not apply for the role, and she said she tried to get the Respondent to redeploy her to the role, however when they did not, she believed it was hopeless.
Other Roles
The Applicant said she did further study which included in relation to Artificial Intelligence. Ms Hughes said the Respondent only had the information the Applicant had given it, and in regard to the work she had been doing, and her resume on file. Ms Hughes said she had spoken to the Talent Acquisition Lead about the new Python Machine Learning Engineer role within the Global Artificial Intelligence team. The Talent Acquisition Lead reviewed the Applicant’s CV in relation to this role and it was determined it was a materially different role and not a suitable redeployment option. Ms Hughes said it was a new role that had just come up. Ms Hughes said she also did not believe the role was ever filled.
Conclusion
Having weighed the evidence I am satisfied that there were no roles that it ‘reasonable in the circumstances’ for the Applicant to have been redeployed into within the employer’s enterprise or associated entity.
The Respondent submitted that the end of the Applicant’s employment was not due to any capacity or conduct of the Applicant, but as the result of a genuine redundancy process which was undertaken fairly.
Conclusion
On the basis of the conclusion above, I am satisfied that due to operational changes the Applicant’s role was no longer required, the Respondent has complied with its consultation obligations under the Award, and it did not have any other roles that it would have been reasonable to redeploy the Applicant into. As the Respondent has satisfied each of the requirements of s.389 of the Act, the Commission does not have jurisdiction to hear the unfair dismissal application. As the Commission does not have jurisdiction, the application is dismissed. An order to this effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
T Lepina-Lavrinovich, for herself
L Hughes, for the Respondent
Hearing details:
7 April
Brisbane
2025.
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 3
[4] Exhibit 4
[5] [2004] FCAFC; (2004) 136 FCR 388.
[6] Ibid [43]-[44].
[7] [2010] FWAFB 3488; (2010) 199 IR 363.
Printed by authority of the Commonwealth Government Printer
<PR785975>
1