1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mrs Uyen Phan v Wesley Community Services Limited trading as Wesley Mission (U2025/9064) COMMISSIONER WALKADEN SYDNEY, 14 JANUARY 2026 Application for an unfair dismissal remedy – dismissal was a case of genuine redundancy – application dismissed [1] This decision determines an application commenced by Mrs Uyen Phan (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against her former employer, Wesley Community Services Limited trading as Wesley Mission (Wesley Mission / the Respondent). The application named Wesley Mission as the Respondent. Pursuant to section 586 of the FW Act, I have exercised my discretion to amend the application to identify the correct name of the Respondent. Mrs Phan contends that she was a person protected from unfair dismissal at the time of being dismissed, that she was unfairly dismissed and seeks that the Fair Work Commission (Commission) order a remedy for the unfair dismissal. The remedy sought by Mrs Phan is compensation.1 [2] The Respondent opposed the application on the two grounds. The first ground was that Mrs Phan’s dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. A finding in favour of the Respondent on that ground would produce the result that Mrs Phan cannot have been unfairly dismissed2 and consequently, the Commission has no power to order remedy.3 The second ground was that Mrs Phan’s dismissal was not harsh, unjust or unreasonable. A finding in favour of the Respondent on that ground would produce the result that Mrs Phan cannot have been unfairly dismissed4 and consequently, the Commission has no power to order remedy.5 [3] On 24 October 2025, the application was the subject of a hearing before me. The hearing concerned the genuine redundancy objection taken by the Respondent, merits and remedy. Mrs Phan appeared for herself. Mr Paul Cotterill, Manager, Wesley Human Resources Operations, appeared for the Respondent. Mrs Phan gave evidence. Mia Soejanto (Financial Controller) gave evidence for the Respondent and was cross-examined. There were no other witnesses called by either party. All the evidence and submissions made by the parties has been considered. [4] For the reasons explained below, I am satisfied that Mrs Phan’s dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. I have dismissed Mrs Phan’s application for an unfair dismissal remedy. [2026] FWC 109 DECISION [2026] FWC 109 2 Relevant facts and findings on contested facts [5] Mrs Phan commenced employment with the Respondent on 3 September 2012.6 Mrs Phan was employed as an Assistant Accountant.7 [6] Ms Soejanto gave uncontested evidence, which I accept, that since October 2021 the Respondent had been part of a national consortium providing the Escaping Violence Payment (EVP) program, a service overseen by the Australian Government Department of Social Services.8 [7] Ms Soejanto gave uncontested evidence, which I accept, that on 13 March 2025, the Chief Executive Officer (CEO) and Superintendent of the Respondent announced that the national consortium including the Respondent was unsuccessful in its tender for the Leaving Violence Payment (LVP) program.9 The LVP program was due to replace the EVP program from 1 July 2025.10 An email from the CEO and Superintendent of the Respondent to senior staff to this effect was before me.11 [8] Ms Soejanto gave uncontested evidence, which I accept, that the loss of the EVP program led to a $77,000,000 reduction in the Respondent’s total annual operating income.12 That equated to a 24% reduction in the Respondent’s total annual operating income.13 [9] Ms Soejanto gave uncontested evidence, which I accept, the loss of the EVP program led the Respondent’s Executive Leadership Team (ELT) to impose a cost reduction target of 11% each year on support services including Wesley Finance.14 Ms Soejanto explained this decision was taken in around April 2025 as part of the Respondent‘s 2025/2026 annual budget planning process.15 [10] Ms Soejanto is responsible for managing the corporate finance team.16 Mrs Phan worked in that team. Ms Soejanto gave uncontested evidence, which I accept, that she was responsible for achieving the cost reduction target in the team.17 [11] Ms Soejanto gave evidence that she decided to make three positions in the corporate finance team redundant to achieve the cost reduction target. The three positions were the Assistant Account position occupied by Mrs Phan, and an Asset and Accounts Payable Manager position, and Accounts Receivable Clerk position.18 Ms Soejanto was cross-examined about the timing of the Asset and Accounts Payable Manager position being made redundant. Ms Soejanto explained the person that occupied that position was made redundant in February 2025, which was before the Respondent had been informed that it had lost the EVP program. Ms Soejanto gave evidence that the Respondent had intended to restructure that position and then fill the newly restructured position. Ms Soejanto gave evidence that the Respondent did not create such a restructured position because of the cost reduction target that the team was required to meet. Ms Soejanto gave evidence the Accounts Receivable Clerk position was vacant at the time of the redundancy. With the benefit of observing Ms Soejanto give evidence, I accept her evidence. [12] Ms Soejanto gave uncontested evidence, which I accept, that positions in other support service teams across the organisation were also made redundant in teams including the [2026] FWC 109 3 Financial Planning and Systems, Marketing and Fundraising, People and Culture, and Business Services.19 [13] Ms Soejanto gave uncontested evidence, which I accept, that a total of 110 positions were made redundant by the Respondent to achieve the cost reduction target.20 This was also set out at paragraph 4b of the Respondent’s Outline of argument.21 In answer to some questions from me at the hearing, Mrs Phan indicated that she agreed with the matters set out at paragraph 4b of the Respondent's Outline. [14] Mrs Phan was on approved leave from 4 March 2025 to 24 April 2025 inclusive.22 Mrs Phan returned to work on 28 April 2025. On 28 April 2025, Mrs Phan was given a letter.23 In part, that letter said: The structure of the Wesley Finance team has recently been reviewed. As a result, this affects the resourcing needs to support the Asset Management function. As a result of this, I have organised a meeting with you to discuss the change. You will have an opportunity to raise any questions or concerns you may have. The letter then identified the meeting details. [15] Mrs Phan met with Ms Keia Deng (Corporate Accountant) and Mr Cotterill on 30 April 2025. Mrs Phan’s husband attended this meeting as a support person. At this meeting, Mrs Phan was advised that her position would become redundant and she was invited identify any reasonable alternatives that may avert or mitigate the adverse effects of the change.24 Mrs Phan was also given a letter dated 30 April 2025 (30 April Letter),25 which has been reproduced below: Dear Uyen, Following the team restructure at the end of January 2025, we have completed a review of the ongoing resourcing needs to support the Asset Management function. The review considered both current and future requirements. With the EVP contract concluding soon and a resulting reduction in the level of support services required, the outcome is that the Assistant Accountant role you currently occupy will no longer be needed. Some tasks have been automated as part of the Business Process review, while others will be absorbed by the existing team. As a result of this situation, it is with regret that I advise that the position of Assistant Accountant, Wesley Finance which you currently occupy, will become redundant on Friday 6 June 2025. I invite you to engage in a consultation process to identify any reasonable alternatives that may be considered as part of this process to avert or mitigate the adverse effects of this change on you. (emphasis added). If you wish, you may submit a written response to me at [Redacted] by 5pm Wednesday 30 April 2025. I will be available to meet with you to discuss any issue you wish to raise. You may also wish to speak to Mia Soejanto, Financial Controller. (emphasis added). [2026] FWC 109 4 Subject to the outcome of the consultation process outlined above, the following options may be considered: • Redeployment opportunities to a comparable position within Wesley Mission • You may apply for any vacant position within Wesley Mission as advertised on the Wesley Mission Intranet site. • Please note, if you are appointed to another position within Wesley Mission the continuity of your service will be maintained. If you are not redeployed or appointed to another position within Wesley Mission, the following will apply: • A redundancy severance package which will be calculated in accordance with the National Employment Standards. Attached for your information is a calculation sheet of monies payable on termination inclusive of severance payment and your accrued leave entitlements. Subject to the consultation process, your five weeks’ notice period will commence on Monday 5 May 2025. Please be aware that for operational reasons you may not be required to work out your notice period in full, in which case you will be paid the balance of this notice period, in lieu of notice. If the redundancy severance package applies, we would allow you up to one day off per week during your notice period, without loss of pay, for the purpose of seeking other employment. Please notify me if you wish to undertake this job search arrangement. Wesley Mission appreciates that this may be a difficult time for you. Therefore, if you would like to undertake the Wesley Mission Employee Assistance Program, please contact Converge International on 1300 687 327. Wesley Mission can also offer you pastoral support. If this is something that you would be interested in, please contact Kaz Irving on [Redacted] Uyen, whilst your position has been made redundant it is in no way reflective on you or your job performance. This decision has been difficult, and we want to thank-you for your contributions to Wesley Mission and wish you well for the future. If there is any way in which we can assist you, please do not hesitate to discuss it with me. Yours sincerely, Keia Deng Corporate Accountant, Wesley Finance [16] It is not apparent from the material before me that Mrs Phan identified any reasonable alternatives to avert or mitigate the adverse effects of the change. [2026] FWC 109 5 [17] On 6 May 2025, Mrs Phan was given a letter dated 6 May 2025 (6 May Letter),26 which has been reproduced below: Dear Uyen, During our meeting last Wednesday, I informed you that the Assistant Accountant role you currently occupy will become redundant on Friday 6 June 2025. This was confirmed in a notification of redundancy letter dated 30 April 2025. I invited you to engage in a consultation process to identify any reasonable alternatives that may be considered to avert or mitigate the adverse effects of this change on you. Unfortunately, there are no comparable positions within Wesley Mission into which you could be deployed. I note you have not expressed interest in any other position in Wesley Mission. (emphasis added). I acknowledge you sent an email to Paul Cotterill and Bryan last Thursday evening in which you requested that the carer's leave scheduled from Tuesday 10 to Friday 27 June 2025 inclusive be paid to you as part of the severance package. Having considered this request, I inform you that Wesley Mission cannot grant the payment request for leave which would have occurred after the date of termination of employment. As stated in the notification of redundancy letter, the five weeks' notice period will commence on Monday 5 May 2025 and that “you may not be required to work out your notice period in full, in which case you will be paid the balance of this notice period, in lieu of notice.” This letter serves to inform you that you will not be required to work after today, and that you will be paid the balance of the five weeks' notice period in lieu. As a result, your last day of employment will be today. Please contact me to arrange the return of the Wesley Mission notebook computer you currently have. I will then arrange for your final payment, including untaken accrued annual leave, long service leave, redundancy severance and payment in lieu of notice. Wesley Payroll will provide you the details of the final payment when it is processed. Wesley Mission appreciates that this may be a difficult time for you. Therefore, if you would like to undertake the Wesley Mission Employee Assistance Program, please contact Converge International on 1300 687 327. Wesley Mission can also offer you pastoral support. If this is something that you would be interested in, please contact Kaz Irving on [Redacted] Uyen, whilst your position has been made redundant it is in no way reflective on you or your job performance. This decision has been difficult, and we want to thank you for your contributions to Wesley Mission and wish you well for the future. [2026] FWC 109 6 Yours sincerely, Keia Deng Corporate Accountant, Wesley Finance [18] Mrs Phan’s dismissal by reason of redundancy took effect on 6 May 2025. On termination, Mrs Phan received payment in lieu of notice, redundancy pay and payment of leave entitlements. Mrs Phan disagrees with the payment of her carer’s leave.27 This matter is irrelevant to the question of whether the dismissal was a genuine redundancy. It is not a matter that I am required to determine. [19] Mrs Phan did not contest these comments made in the 6 May Letter and repeated in the Respondent’s Outline:28 (a) that there were no comparable positions within the Respondent (or associated entity) to which Mrs Phan could have been redeployed. (b) Mrs Phan did not express interest in any other position with the Respondent. Genuine redundancy objection [20] The meaning of genuine redundancy is defined at section 389 of the FW Act. Section 389 of the FW Act is reproduced below: 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. [21] Section 389 of the FW Act is clear.29 In order for Mrs Phan’s dismissal to be a genuine redundancy, each of the three requirements of section 389 must be satisfied. The three requirements of section 389 are considered below. Whether the Respondent no longer required Mrs Phan’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise: Section 389(1)(a) [2026] FWC 109 7 [22] The first requirement of section 389 is section 389(1)(a). There are two parts to section 389(1)(a). The first part is whether the person’s employer no longer required the person’s job to be performed by anyone. The second part only arises for consideration if the first part is satisfied. The second part is that the job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. That is, the second part is concerned with the reason/s for the job being no longer required. Both parts of section 389(1)(a) must be satisfied. [23] The first part of the section 389(1)(a) was considered by a Full Bench of the Commission in Ulan Coal Mine Limited v Henry Jon Howarth and others [2010] FWAFB 3488 (Ulan). The Full Bench in Ulan observed that section 389(1)(a) refers to a person’s “job”.30 The Full Bench went on to distinguish the person’s job from the duties performed by the person.31 A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee.32 The effect of the decision of the Full Bench in UIan is that the first part of section 389(1)(a) must be approached by answering whether the Respondent no longer required Mrs Phan’s job - as so defined - to be performed by anyone. [24] To the extent that Mrs Phan’s submissions engaged with section 389 of the FW Act, those submissions were focused on the requirement of section 389(1)(a). In summary terms, Mrs Phan’s argument was that much of the duties that she performed had not been eliminated and were still being performed.33 Mrs Phan estimated that 89% of her duties were still being performed.34 For example, Mrs Phan argued that the work was not eliminated, it was simply fragmented and re-distributed.35 Mrs Phan also contested the financial necessity for her redundancy and said that the process was targeted. [25] On application of Ulan, the enquiry posed by the first part of section 389(1)(a) is to be determined by reference to Mrs Phan’s “job”. Ulan draws a distinction between a person’s job and their duties. As is the case with many self-represented applicants, Mrs Phan has not appreciated this distinction. It is irrelevant to the enquiry posed by section 389(1)(a) whether the duties that Mrs Phan performed continue to be performed and / or whether those duties have been redistributed to others. The enquiry is focused on the job – as so defined – in Ulan. [26] Mrs Phan relied upon a document, which was entitled Appendix A: Task Analysis Summary.36 There are four columns in the Task Analysis Summary. The first column is entitled ’Description’. The second column is entitled ‘Hours required per month’. The third column is entitled 'Overall percentage’. The fourth column is entitled 'Re-assignment / New Classification’. In the rows below the first column, there are 26 tasks identified. These are the duties that the parties agreed that Mrs Phan performed. In the rows below the second column, Mrs Phan has estimated the time that she spent on the respective task per month. In the rows below the third column, Mrs Phan has estimated the overall percentage of time that she spent on the respective task. In answer to some questions from me at the hearing, Ms Soejanto agreed with Mrs Phan’s estimates in the second column and the third column. In the rows below the fourth column, Ms Soejanto had identified whether the 26 tasks performed by Mrs Phan were no longer required (which was identified by the words No Longer Required and marked in yellow), were to be automated (which was identified by the word Automated and marked in green), can be automated (which was identified by the words Task transferred to Systems Team [2026] FWC 109 8 and marked in light green), redistributed to either the Corporate Accountant or Accountant Support (and marked in grey) or whether a new report was to be introduced (which was identified by the words New Report and marked in blue). The Respondent relied upon a similar document in support of its argument that the duties performed by Mrs Phan had either been redistributed to other employees, streamlined or automated, or were no longer required.37 Ms Soejanta explained at the hearing that these documents emerged from a business review process. [27] I am satisfied that the duties performed by Mrs Phan have either been redistributed to other employees, streamlined , automated, or are no longer required. That does not mean that Mrs Phan’s job – as so defined – is still required. The enquiry posed by section 389(1)(a) is focused on the job, not the duties. The job performed by Mrs Phan was that of Assistant Accountant. It is clear on the material before me, most obviously, the Task Analysis Summary, that the Respondent no longer required Mrs Phan’s job to be performed by anyone. [28] The second part of section 389(1)(a) requires that Mrs Phan’s job was no longer required because of changes in the operational requirements of the Respondent. The FW Act does not define the term operational requirements. Operational requirements has been held to be a broad term that permits consideration of many matters including, but not limited to, past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve the efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.38 [29] At the hearing, Mrs Phan said that her redundancy had nothing to do with the Respondent’s loss of the EVP program. Mrs Phan explained that her job did not deliver any services to the EVP program, but rather her job was focused on asset management and projects. Mrs Phan also cross-examined Ms Soejanto about the Asset and Accounts Payable Manager being made redundant in February 2025, which was prior to the announcement that the Respondent had been unsuccessful in tendering (as part of a national consortium) for the LVP program. I accept Ms Soejanto’s uncontested evidence that the loss of the EVP / LVP program was the catalyst for the Respondent’s ELT deciding to impose a cost reduction target of 11% each year. I am satisfied this cost reduction target was the reason for Mrs Phan’s redundancy. I am satisfied this cost reduction target was also the reason for the Respondent not filling the position that was to be restructured from the redundant Asset and Accounts Payable Manager position. I reject any suggestion that the timing of the redundancy of the Asset and Accounts Payable Manager position means that Mrs Phan’s redundancy was for reasons other than the cost reduction target or that Mrs Phan’s redundancy was not a genuine redundancy. I am satisfied that Mrs Phan’s redundancy – along with the loss of 109 other jobs – was because of the cost reduction target set by the ELT. The cost reduction target was imposed in response to a significant reduction in the Respondent’s annual operating income. The reason for Mrs Phan’s job being no longer required can be comfortably characterised as being because of changes in operational requirements. [30] For those reasons, I am satisfied that the requirement of section 389(1)(a) of the FW Act has been met. Whether the Respondent has complied with any obligation in a modern award or enterprise agreement that applied to consult about the redundancy: Section 389(1)(b) [2026] FWC 109 9 [31] Mrs Phan did not submit that the Respondent failed to comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. Neither party submitted that an enterprise agreement applied. In answer to some questions that I asked at the hearing, Mrs Phan said that she was not sure if she was covered by a modern award. The Respondent submitted that a modern award did not apply to Mrs Phan’s employment.39 The Respondent submitted that it engages in a consultation process for all employees, irrespective of whether they are covered by a modern award or enterprise agreement.40 The Respondent submitted that it consulted with Mrs Phan.41 [32] At the hearing, I put the Respondent on notice that the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) may have applied to Mrs Phan’s employment with the Respondent. [33] On application of the settled principles used to interpret an award,42 I am satisfied that Mrs Phan was covered by the SCHADS Award. The coverage term of the SCHADS Award is found at clause 4. The SCHADS Award is an industry award. The industries covered include the social and community services sector, which is defined at clause 3. In answer to some questions from me at the hearing, the Respondent accepted that it was an employer in the social and community services sector. [34] There is a further requirement that must be satisfied to be covered by the SCHADS Award. That is, the employee must fall within one of the classifications listed in Schedule B - Schedule F. Schedule B concerns social and community services employees. There are eight classification levels in Schedule B. The classification levels are differentiated by reference to a long list of matters grouped under headings, including characteristics of the level, responsibilities, requirements of the position, organisational relationships, and extent of authority. The classification levels have been expressed with such a high degree of generality to ensure that employees in these industries do not fall outside of award coverage. [35] It is clear from reviewing the social and community services employee level 8 that such a level extends to senior managerial employees (and senior specialists). This is most obvious from B.8.1(a), (b) & (g), B.8.2(c) & (e). The level 8 is also a level above the level 7. The social and community services employee level 7 employee is also an employee that exercises managerial responsibility for a section or the organisation as a whole (or is a specialist). This is clear from B.7.1(a), (d) & (f), B.7.2(a) & (b), B.7.3(b)(ii), B.7.3(c)(i) & (ii). Mrs Phan was not a manager, let alone a senior managerial employee (or a senior specialist). The fact that Schedule B extends to senior managerial employees (and senior specialists) persuades me that employees working in the relevant industry at a lower level are also covered by Schedule B. I am satisfied that Mrs Phan falls within the social and community services employee level 5. I make this finding based primarily on B.5.1(a) & (c), B.5.2(d), (n) & (p). Consequently, I am satisfied that Mrs Phan falls within the coverage of the SCHADS Award. [36] I have found that Mrs Phan was covered by the SCHADS Award. There was no suggestion that the SCHADS Award did not apply to Mrs Phan on any basis other than the question of coverage. I find that the SCHADS Award applied to Ms Phan’s employment with the Respondent. The effect is the question of whether the Respondent complied with clause 8 of the SCHADS Award, which imposes an obligation to consult, must be considered. [2026] FWC 109 10 [37] I have made factual findings about the steps taken by the Respondent to consult with Mrs Phan about her redundancy. [38] The consultation process commenced when Mrs Phan was given the letter dated 28 April 2025. Mrs Phan then attended the meeting with Ms Deng and Mr Cotterill on 30 April 2025. At that meeting, Mrs Phan was given the 30 April Letter. I am satisfied that the 30 April Letter satisfies the Respondent’s obligations under clause 8.1(a) and 8.2 of the SCHADS Award. The 30 April Letter gave Ms Phan notice of the change, and all relevant information about the changes including the nature of the change, the expected effects and any other matters likely to affect the employee. I am satisfied that the discussion at the meeting on 30 April 2025 satisfies the Respondent’s obligations under clause 8.1(b) of the SCHADS A\ward. The discussion included the introduction of the change, the likely effects on Mrs Phan and measures to avoid or reduce the adverse effects of the change. In that respect, I note that Mrs Phan was invited to identify any reasonable alternatives that may avert or mitigate the adverse effects of the change. It does not appear that Mrs Phan did so. [39] For those reasons, I am satisfied that the Respondent complied with the obligations under clause 8 of the SCHADS Award to consult with Mrs Phan about the redundancy. The requirement in section 389(1)(b) has been met. Whether it would have been reasonable in all the circumstances for Mrs Phan to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity: Section 389(2) [40] A Full Bench of the Commission in Pykett explained that “for the purposes of s.389(2) the Commission must find, on the balance of probabilities, that 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 also be an appropriate evidentiary basis for such a finding.”43 A Full Court of the Federal Court of Australia in Helensburgh Coal44 was concerned with whether redeployment would have been reasonable in all the circumstances and held: [66] It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC’s assessment of what “would have been reasonable in all [of] the circumstances”. [41] The High Court of Australia dismissed an appeal from the decision of the Full Court of the Federal Court of Australia in Helensburgh Coal.45 [42] An earlier Full Bench of the Commission in Honeysett46 provided some guidance of a number of matters that may be relevant in determining whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. Those matters are non-exhaustive, but include the nature of any available [2026] FWC 109 11 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. [43] Mrs Phan did not make any proper submissions with respect to the requirements of section 389(2). Mrs Phan submitted that it was entirely unreasonable for the Company not to redeploy her within the organisation. This is demonstrated by the fact that the Company did not need to make her position redundant.47 That submission misunderstands the concept of redeployment and the requirements of section 389(2). [44] In her written material, Mrs Phan did not identify any job, position or other work to which she contended it would have been reasonable in all the circumstances for her to be redeployed. In answer to some questions from me at the hearing, Mrs Phan indicated that there were no jobs available with the Respondent at the time of her dismissal that suited her. Mrs Phan also confirmed that there were no job, task or other work that she should have been redeployed to. [45] I am unable to identify any other job or position or other work within the Respondent’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mrs Phan. [46] For the reasons explained above, I am satisfied that the requirement in section 389(2) of the FW Act has been met. Conclusion on genuine redundancy objection [47] Mrs Phan’s dismissal was a genuine redundancy within the meaning of 389 of the FW Act. In accordance with section 396(d) of the FW Act, the merits of Mrs Phan’s dismissal cannot be considered. Mrs Phan has not been unfairly dismissed within the meaning of section 385 of the FW Act and the Commission cannot order a remedy. Mrs Phan’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately to this decision. COMMISSIONER Appearances: U. Phan, the Applicant P. Cotterill, for the Respondent [2026] FWC 109 12 Hearing details: Sydney by Video using Microsoft Teams 2025 24 October Printed by authority of the Commonwealth Government Printer <PR795837> 1 Digital Hearing Book (DHB) page 9. 2 Section 385(d) of the FW Act. 3 Section 390(1)(b) of the FW Act. 4 Section 385(b) of the FW Act. 5 Section 390(1)(b) of the FW Act. 6 DHB page 40. 7 Paragraph 9 of the Witness Statement of Mia Soejanto dated 7 October 2025 (Soejanto Statement), DHB page 64. 8 Paragraph 3 of the Soejanto Statement, DHB page 64. 9 Paragraph 4 of the Soejanto Statement, DHB page 64. 10 Paragraph 4 of the Soejanto Statement, DHB page 64. 11 DHB page 68. 12 Paragraph 6 of the Soejanto Statement, DHB page 64. 13 Paragraph 6 of the Soejanto Statement, DHB page 64. 14 Paragraph 7 of the Soejanto Statement, DHB page 64. 15 Paragraph 7 of the Soejanto Statement, DHB page 64. 16 Paragraph 2 of the Soejanto Statement, DHB page 64. 17 Paragraph 8 of the Soejanto Statement. 18 Paragraph 9 of the Soejanto Statement, DHB page 64. 19 Paragraph 10 of the Soejanto Statement, DHB page 65. 20 Paragraph 12 of the Soejanto Statement, DHB page 65. 21 DHB page 47. 22 DHB page 29. 23 DHB page 56. 24 Paragraph 14 of the Soejanto Statement, DHB page 65. 25 DHB pages 32 – 33. 26 DHB pages 35 – 36. 27 DHB pages 5, 8, 16 – 17. 28 DHB page 48 – 50. 29 Helensburgh Coal Pty Ltd v Mr Neil Bartley and Mr Jake Bennett and Others [2022] FWCFB 166 at [32] - [33]. 30 Ulan at [17]. 31 Ulan at [17] - [19]. 32 Ulan at [17]. [2026] FWC 109 13 33 DHB pages 6, 13 – 14, 16 – 17. 34 DHB page 14. 35 DHB page 14. 36 DHB page 19. 37 DHB pages 47 & 55. 38 Amy Veronica Greene v Floreat Hotel – CEH Group t/a Floreat Hotel [2021] FWC 2198 at [99], Amy Veronica Greene v Floreat Hotel – CEH Group t/a Floreat Hotel [2021] FWCFB 4103 at [22], Nettleford v Kym Smoker Pty Ltd [1996] IRCA 495, (1996) 69 IR 370, 373. 39 DHB page 49. 40 DHB page 49. 41 DHB page 49. 42 Kestrel Coal Pty Limited v Odette Lennox [2025] FWCFB 114 at [8] - [13]. 43 Technical and Further Education Commission t/a TAFE NSW v L. Pykett [2014] FWCFB 714 at [36]. 44 Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45. 45 Helensburgh Coal Pty Ltd v Neil Bartley and Others [2025] HCA 29. 46 Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 at [28]. 47 DHB page 8.