In a recent decision, the Fair Work Commission (FWC) has emphasised that an employer’s obligations to consult during the redundancy process under the Fair Work Act 2009 (Cth) (FW Act) is not a mere procedural formality, but a mandatory requirement for genuine redundancy.
In Horsnell v CEVA Logistics (Australia) Pty Ltd [2026] FWC 70, the FWC dismissed the jurisdictional objection and held that the employee’s redundancy was not genuine because CEVA Logistics (Australia) Pty Ltd (the Employer) had failed to comply with its consultation obligations.
The employee commenced work with the Employer as Operations Supervisor in June 2024 and was covered by the Road Transport and Distribution Award 2020 (the RTD Award).
In early 2025, the Employer initiated a restructure to improve profitability across several warehouses. As part of this restructure, the Employer determined that multiple roles – including the employee’s – would be made redundant.
While consultation with other affected employees commenced in late May 2025, the employee was on leave due to injury and was not informed of the proposed restructure and her potential redundancy until 5 June 2025.
The employee was again on leave due to injury from 5 June 2025 to 10 June 2025, during which she did not have access to her work laptop. The Employer later relied on the assumption that during this period the employee had access to the Employer’s internal careers network via her work laptop which identified 18 vacant roles within the organisation.
During her consultation meeting held on 10 June 2025, the employee presented a detailed response outlining her achievements and urged the Employer to reconsider its decision and to consider other redeployment opportunities.
However, immediately following this meeting the employee was issued a termination letter advising her that her role was redundant with immediate effect.
The employee lodged an unfair dismissal claim and in response, the Employer made a jurisdictional objection to the claim arguing that the employee was made genuinely redundant.
The FWC considered the evidence of both parties and ultimately rejected the Employer’s jurisdictional objection on the basis that the Employer had not discharged its obligations under section 389(1) of the FW Act.
In consideration of the first limb of section 389(1)(a) of the FW Act, the FWC was satisfied that the Employer had legitimately restructured its operations and no longer required the Operations Supervisor role filled by the employee.
However, the FWC then turned to whether the Employer had satisfied the second limb of section 389(1)(b) FW Act, which required the Employer to comply with its consultation obligations under the RTD Award.
In consideration of the RTD Award, the FWC was not satisfied that the Employer had consulted the employee about measures to avoid or reduce the adverse effects of the redundancy, including discussing any redeployment opportunities.
The FWC outlined that compliance with the RTD Award would have required the Employer to:
The Employer argued that it had discharged its obligation to discuss any redeployment opportunities based on the assumption that the employee had access to the Employer’s career portal and was aware of the 18 vacant roles available in the organisation.
The FWC criticised the Employer’s approach which put the onus on the employee to propose any redeployment opportunities or other measures to mitigate the effects of the redundancy.
The FWC emphasised that even if the employee had been aware of the 18 vacant roles through the Employer’s internal career network – which the FWC found she was not – it remained the Employer’s responsibility to provide information about the redeployment opportunities directly to the employee.
The Employer also argued that it had considered redeployment but had concluded that it could not reasonably redeploy the employee into any of the 18 vacant roles. Although the FWC ultimately agreed with the Employer that redeployment would have been unreasonable, the FWC found the Employer was still required to discuss its reasoning with the employee and give genuine consideration to her responses.
Finding that the Employer had failed to take these reasonable steps, the FWC concluded the Employer had not discharged its consultation obligations under the RTD Award, and therefore the dismissal was not a case of genuine redundancy within the meaning of section 389(1) of the FW Act.
As a result, the FWC rejected the Employer’s jurisdictional objection which meant the FWC was open to find that the failure to consult also rendered the dismissal harsh, unjust and unreasonable, and ultimately ordered the Employer to pay over $7,000 in compensation.
Employers should engage in active and meaningful consultation with employees during the consultation process if they wish to rely on the ‘genuine redundancy’ exemption in response to an unfair dismissal claim.
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