Appeal rejected: dismissal was a genuine redundancy


Appeal rejected: dismissal was a genuine redundancy

A Bakers Delight employee who lost her unfair dismissal case has been refused permission to appeal. A full bench agreed it had been a genuine redundancy.

An employer who made a trainee manager redundant, and offered to re-employ her as a sales assistant, carried out a genuine redundancy, a Fair Work Commission full bench has ruled.


The employee, Ms “JT”, sought permission to appeal a Fair Work Commission decision after she lost against her former employer, Bakers Delight.

The woman was employed as a trainee manager at Bakers Delight from July 2015. From January 2016 she was involved in discussions with the employer about the poor finances of the business and the need to save money. Other members of staff had their hours cut for this reason although JT’s hours were not cut.

In late April 2016, a meeting took place between JT and the employer about her continued employment.

The employer told JT she could no longer work as a trainee manager owing to financial pressures and that she was to be made redundant with two weeks’ notice. However, she was offered a sales assistant role. That sales role would have fewer hours – 15 hours a week compared to the trainee manager-hours of 30 hours a week.

JT declined the offer of the sales role and launched a claim at the FWC alleging there was not a genuine redundancy as she had in fact been unfairly dismissed.

The law

There is a “genuine redundancy” if:
  • the employer no longer requires the job to be done by anyone else because of operational changes in the business
  • the employer complies with duties to consult in the modern award or enterprise agreement; and
  • it is unreasonable in the circumstances for the employee to be redeployed in the business or in an associated business (see s389(1) of the Fair Work Act).

Initial decision

In the first-instance, the Commissioner found that JT’s former job as a trainee manager was no longer being done by anyone.

It was also held that the employer had satisfied its General Retail Industry Award 2010 obligations to consult with JT on the redundancy and the financial reasons for it. It was also held  that it was not reasonable to redeploy JT as a trainee manager in the business when there was no such position available. The case was dismissed.

Permission sought to appeal

However, JT sought permission to appeal, arguing that the first Commissioner had made a mistake in ruling there had been adequate consultation.

She argued that discussion of the financial circumstances of the business were not enough to rule that there had been consultation. For instance, she argued the Commissioner did not consider whether the employer had communicated as early as practicable any definite decision of proposed changes, their effects or mitigation. She also argued that the consultation was not in writing as required by the modern award.

The full bench noted that if it gave permission to appeal, it would effectively be overturning the first Commissioner’s acceptance of evidence. It observed that there had been a full hearing at which key evidence was presented, but not challenged by the employee, and that the evidence was corroborated by independent witnesses.

The full bench ruled it would be against the public interest to give JT permission to appeal.

It noted that the employer did not provide consultation “in writing” as required by the modern award but ruled that particular error did not necessarily mean there was a public interest strong enough to grant permission to appeal, especially as there was no injustice caused to JT.

“[JT’s] position was authentically made redundant by a business in difficult financial circumstances, she was consulted about the business’s difficulties beforehand, and the business offered (and she declined) such alternative employment as it was able to provide her … there does not seem to us to be any real possibility that JT could ultimately demonstrate her dismissal to have been unfair,” the full bench said.

Permission to appeal was refused.

JT v Tase 0508 Pty Ltd T/A Bakers Delight Broadmeadow
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