Structured employment research, not a blank page.
Matter Desk helps employment lawyers turn chronologies, meeting notes, and termination records into first-pass risk assessments and evidence requests. Everything is linked to the matter.
Sample research output
Question
Our client is a full-time employee dismissed after 3 years of service at a company with 40 employees. The employer says it was genuine redundancy but did not consult the client before the decision was made and did not consider redeployment. The client was covered by a modern award. Does our client have an unfair dismissal claim under the Fair Work Act 2009 (Cth)?
Short Answer
The client likely has a viable unfair dismissal claim. The employer's failure to consult before making the redundancy decision and failure to consider redeployment means the dismissal is unlikely to qualify as a “genuine redundancy” under s 389 of the Fair Work Act 2009 (Cth). The Fair Work Commission must then assess whether the dismissal was “harsh, unjust or unreasonable” under s 387.
Relevant Authorities
- Fair Work Act 2009 (Cth) s 385, what is an unfair dismissal
- Fair Work Act 2009 (Cth) s 387, criteria the FWC must consider (all 8 criteria)
- Fair Work Act 2009 (Cth) s 389, meaning of genuine redundancy
- Fair Work Act 2009 (Cth) s 394, application for unfair dismissal remedy (21-day time limit)
- Coles Supply Chain v Milford [2020] FCAFC 152, requirement to consult under modern award before redundancy decision is made
- UES (Int'l) Pty Ltd v Harvey [2003] AIRC 1091, redeployment obligation, reasonable in all circumstances
- Ulan Coal Mines v Honeysett [2010] FWAFB 7578, genuine redundancy requires the job itself to be redundant
Reasoning
Under s 385, a person has been unfairly dismissed if: (a) the person has been dismissed; (b) the dismissal was harsh, unjust or unreasonable; (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy.
Genuine redundancy defence (s 389): The employer's redundancy defence fails at two points.
First, the consultation obligation under s 389(1)(b). Where a modern award applies, the employer must comply with the consultation obligations in that award. In Coles Supply Chain v Milford, the Full Federal Court held that consultation must occur before the final decision is made, not merely as a notification after the fact. The employer's failure to consult before deciding to make the role redundant means s 389(1)(b) is not satisfied.
Second, the redeployment requirement under s 389(2). A dismissal is not a genuine redundancy if it would have been reasonable to redeploy the person within the employer's enterprise or an associated entity. With 40 employees, the FWC will examine whether alternative roles were available and whether the employer took reasonable steps to identify them.
Section 387 criteria: Because the genuine redundancy defence fails, the FWC must assess whether the dismissal was harsh, unjust or unreasonable by considering all eight criteria under s 387, including whether there was a valid reason related to capacity or conduct (s 387(a)), whether the person was notified of the reason (s 387(b)), and whether the person was given an opportunity to respond (s 387(c)).
Caveats
The 21-day time limit under s 394 is strict. The client must file the application within 21 days of the dismissal taking effect, not 21 days from this advice. The high-income threshold and minimum employment period (s 382) should be verified against the client's actual salary and start date. The modern award coverage and any enterprise agreement terms should be confirmed.
Human review required before client-facing use.
What Matter Desk does for employment law.
Unfair dismissal risk assessment with Fair Work Act deadline calculation.
Chronology and meeting-note analysis for process compliance.
Evidence gap identification with structured next-step recommendations.
IRAC memos linking employment authorities to matter-specific facts.
Correspondence drafting for show-cause and termination review workflows.