1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Luca Yin v LUMIA CARE SERVICES PTY LTD (U2025/5521) COMMISSIONER CONNOLLY MELBOURNE, 24 OCTOBER 2025 Application for an unfair dismissal remedy – jurisdictional objection – dismissal a case of genuine redundancy – found basis for jurisdictional objection exists – application dismissed. Introduction & Outcome [1] On 2 May 2025, Mr Luca Yin (Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Lumia Care Services Pty Ltd (the Respondent or Lumia Care) on 16 April 2025 was harsh, unjust or unreasonable. The Respondent denies these allegations and further asserts the application cannot succeed because the termination was a case of Genuine Redundancy as defined by s.389 of the Act. [2] On 27th June, Directions were issued for the filing of submissions and evidence in relation to the merits of Mr Yin’s application along with the employer’s jurisdictional objection of a Genuine Redundancy to be heard on 13 August in Melbourne. [3] I have found that the termination of Mr Yin’s employment was not harsh, unjust or unreasonable after considering all the material and evidence presented by both the Applicant and the Respondent in this case. I have further found and am satisfied the Respondent’s decision to bring Mr Yin’s employment to an end was a case of Genuine Redundancy. [4] For the reasons set out below, this application is dismissed. When can the Commission Order a Remedy for unfair dismissal? [5] Section 390 of the Act provides that the Commission may order remedy if: (a) the FWC is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and (b) the person has been unfairly dismissed. [2025] FWC 3179 [Note: An appeal pursuant to s.604 (C2025/11300) was lodged against this decision - refer to Full Bench decision dated 22 January 2026 [[2026] FWCFB 12] for result of appeal.] DECISION [2025] FWC 3179 2 [6] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am so satisfied, next consider whether the Applicant has been unfairly dismissed. When is a person protected from unfair dismissal? [7] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed: (a) The person is an employee who has complete a period of employment with his or her employer of at least the minimum employment period; and (b) One or more of the following apply: (i) A modern award covers the person; (ii) An enterprise agreement applies to the person in relation to the employment; (iii) The sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less that the high-income threshold. When has a person been unfairly dismissed? [8] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.” Relevant background [9] Mr Yin commenced full time employment with Lumia Care Services on 18th of March 2024. At the time his employment ended he was working as a Senior Financial Planning & Analysis (FP&A) Analyst. During his employment, Mr Yin’s direct manager was Mr Grant Edmunds, the Respondent’s Chief Financial Officer. [10] Towards the end of 2024, the Respondent experienced a downturn in its financial performance that had the potential to put its solvency and banking covenants at risk. In response, Lumia Care developed a restructuring cost-out program that included the elimination of 54 roles across its operations that would deliver significant annual savings. Mr Yin’s role was identified as part of this cost-out program.1 [2025] FWC 3179 3 [11] In early 2025, the Respondent commenced a consultation program with employees in relation its proposed restructure. [12] In early January 2025, Mr Yin sought to take a period of annual leave from 28th January to 7th of February. On 14th of January, he was told by Mr Edmunds the Respondent was unable to accommodate his leave request because he was required to perform critical work at the time. [13] In early February 2025, it was necessary for Mr Yin to take a period of personal leave to seek treatment for a medical condition. He provided the Respondent with medical certification that he would be unfit for work from 11 February to 24th February. [14] On or around the 18th of February, the Respondent’s HR representative advised Mr Edmunds that as Mr Yin had a significant number of unplanned periods of leave, he should be required to provide a return-to-work certificate prior to returning to the workplace. [15] On 19th February, Mr Edmunds sent Mr Yin an email checking in on his wellbeing and advising him HR would reach out to him about his periods of leave and returning to work. On the same day, the Respondent’s HR Manager, Mr Medina, emailed Mr Yin requesting he provide the Respondent with a ‘fit for work clearance’ confirming his capacity and requirements for his return to work on Monday, February 24th. [16] On 25th of February, Mr Yin sent Mr Edmunds a further medical certificate indicating he remained unwell and was unfit for work from 25th February to 10th March. [17] On 27th February, Mr Medina emailed Mr Yin acknowledging the Respondent’s receipt of his medical certificate and seeking a suitable time to discuss what at that time was 4 weeks of unplanned personal leave. Mr Yin responded to Mr Medina the same day indicating he would be able to provide an update on his condition on Wednesday, 5th of March. [18] The next day, Mr Medina sent Mr Yin a meeting invitation for Wednesday, 5th of March. Mr Yin failed to attend this meeting in person but presented on MS Teams. Mr Yin was not able to provide any clarity on his medical condition at this meeting without medical advice. He indicated, however, that he would confirm his ability to return to work. On March 9th, Mr Yin provided Mr Medina and Mr Edmunds with a medical certificate indicating he was able to return to work from home for 3 days a week from the period of March 10th – 6th April.2 [19] On 11th of March, the Respondent engaged an external contractor, Mr Pritchard, to meet its need for temporary support in financial reporting and forecasting created by the Applicant’s unplanned absences and ongoing uncertainty of his capacity to return to full time work. Mr Pritchard was engaged on a fixed-term temporary basis that ended in May 2025. [20] On March 26th, Mr Medina sent Mr Yin an email advising him the Respondent sought to consult with him about its cost-out program and restructure. Attached to this email was correspondence titled ‘Notice of Intention to Terminate Employment – Redundancy’. Mr Yin responded to Mr Medina seeking a postponement to the meeting so he could arrange a support person to attend. Mr Medina accommodated this request, advising Mr Yin the meeting would now be held the following week. [2025] FWC 3179 4 [21] On 30th March, Mr Yin emailed Mr Medina and Mr Edmunds providing them a medical certificate advising he was no longer fit for work from 31 March to 13th April 2025. On 31st March, Mr Medina emailed Mr Yin and advised he was required to attend the rescheduled consultation meeting the following day and advising him a failure to attend could result in the consultation proceeding without his input. [22] Mr Yin did not attend the consultation meeting on April 1st or provide any additional reason why he was not able to attend. On the same day, Mr Medina sent Mr Yin another email advising him that as he had failed to attend the scheduled consultation he was being provided a final opportunity to participate in the process by providing written submissions by 5pm the following day. [23] Mr Yin emailed Mr Medina the following day advising as he was not fit for work, he was unable to participate in the consultation process and would do so when he was able. Mr Medina replied to Mr Yin noting he advised the Respondent he was medically unfit after being advised his position may be redundant. Mr Medina further advised Mr Yin he would provide him a further final opportunity to participate in the consultation process in a meeting on the 14th of April and that no further opportunities would be provided if Mr Yin failed to attend this meeting. [24] On April 13th, Mr Yin emailed Mr Medina advising he would not be able to attend the consultation meeting the following day and would provide a medical certificate later the next day. Mr Medina responded to this email advising Mr Yin he continued to be expected to attend the consultation meeting on April 14th as scheduled. [25] Mr Yin did not attend the consultation meeting on April 14th. Later that day he sent Mr Medina an email with a medical certificate attached advising him that he was unfit for work and would be in contact in relation to the redundancy consultation when he was fit to do so. [26] On 17th April, Mr Medina emailed Mr Yin advising him his position was made redundant as part of the Respondent’s cost-out restructure program, terminating his employment with notice and entitlements. [27] At the time of his termination, Mr Yin was one of 24 other people being made redundant by the Respondent as part of this program, four of whom were part of Mr Medina’s People and Culture Team. The Hearing [28] There being contested facts involved, the Commission is obliged by s397 of the Act to conduct a conference or hold a hearing. Considering the views of the parties and the circumstances of this case, I determined a hearing was the most effective and efficient way to progress and resolve the matters of contention. [29] The hearing was convened on 13 August in Melbourne. The Applicant represented himself and his evidence and submissions to the Commission were aided by a FWC facilitated [2025] FWC 3179 5 Cantonese interpreter. Mr Rabi Medina, the Respondent’s Chief People Officer, represented the Respondent and provided sworn evidence in proceedings. Witnesses and submissions [30] As the Applicant, Mr Yin filed written submissions and gave sworn evidence on his own behalf during proceedings. Mr Yin acknowledged in proceedings that his written material was assisted by the use of AI. [31] The Respondent filed written material. Mr Medina gave sworn evidence and made submissions. Mr Grant Edmunds, the Respondent’s Chief Financial Officer, also provided a witness statement and gave sworn evidence in proceedings. [32] I found all participants sought to give evidence to the best of their recollection and provide genuine assistance to the Commission in its deliberations. However, I was not convinced the evidence of Mr Yin was complete regarding the reasons why he was unable to attend work during the consultation period relevant to the decisions to make his position redundant. I found his evidence unnecessarily evasive. Initial Matters to be considered [33] Section 396 of the Act sets out the following: “The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: (a) Whether the application was made within the period required in subsection 394(2); (b) Whether the person was protected from unfair dismissal; (c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy.” [34] As set out above in s.396 of the Act, consideration as to whether the dismissal was unfair cannot occur unless the Commission is first satisfied that the provisions of s.396 have been met. [35] Section 396(a) requires the application to be made within the 21-day timeframe required by s.394(2). In the present case, it is not in dispute that the application has been made within the required timeframe. I am satisfied this is the case. [36] It is not disputed, and I am satisfied that Mr Yin is an employee of the Respondent at the time of dismissal. [37] Materials of the both the Applicant (Form F2) and the Respondent (Form F3) confirm the day Mr Yin commenced his employment with Lumia Care was 18 March 2024. [2025] FWC 3179 6 [38] Both the Applicant and Respondent agree, Mr Yin’s employment ended on 16th April 2025. I am therefore satisfied, at the time of dismissal, Mr Yin was an employee who had completed at least the minimum period of employment with the Respondent. [39] It is not in dispute, and I am satisfied that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings was less than the high-income threshold. [40] I am therefore satisfied that, at the time of dismissal, Mr Yin was a person protected from unfair dismissal. [41] It is not in dispute the Respondent is not a small business. As a consequence, this is not a relevant factor. Award or Enterprise Agreement Coverage [42] In its Form F3, the Respondent has submitted that no Agreement or Award relevantly covers the employment of the Applicant and that his terms and conditions of employment are award and agreement free. [43] In proceedings, Mr Yin accepted and acknowledge that as a Senior Group Financial Planning and Analyst (Senior FP&A) his employment with the Respondent was not covered by a relevant modern award or agreement. [44] The Respondent described the role of the Applicant as involving transactional forecasting, budget alignment and financial modelling for discrete portfolios within the business reporting directly to the Chief Financial Officer.3 [45] The Applicant does not dispute the Respondent’s description of his role and duties. [46] While I have considered the evidence before me on the issue of award coverage, the application of a modern award is a matter of fact to be determined by the Commission. [47] The Banking, Finance and Insurance Industry Award 20204 covers work of employees performing the work of financial analysis in the banking, finance and insurance industry. The Respondent is not engaged in these industries. I am satisfied that the employee is not covered by this award. [48] I have also considered whether the Clerks Private Sector Award 2020 (the Clerks Award)5 may apply. Clause 4 in the Clerks Award provides as follows: “4.1 This occupational award covers: (a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and (b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a)” [2025] FWC 3179 7 [49] There is no question that the Respondent is a private sector employer. Clauses 4.3 and 4.4 of the Clerks Award makes clear its coverage is not extended to employers covered by another modern award containing clerical classifications or employers covered by other industry awards, including the Aged Care Award 2010 and Health Professionals and Support Services Award 2020. [50] The principal and uncontested evidence is the Applicant works for the Respondent performing duties including financial analysis, forecasting, modelling, and budget alignment in the Aged and Health Care Industries. On the uncontested evidence available to me, these duties do not appear to fall within the classifications of either Award mentioned in paragraph [49] above. I am therefore satisfied the Applicant is also not covered by the above Awards. [51] I have also considered whether the Applicant was covered by the Miscellaneous Award 2020.6 The Coverage clause (4) of this award at 4.2 provides as follows: “4.2 The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.” [52] The uncontested evidence and materials in this case, including the Applicant’s own evidence, is that he was performing duties including financial analysis, budget forecasting, and alignment. On this basis, I am satisfied he was not covered by the Miscellaneous Award. [53] It follows from the above that I am satisfied that the Applicant was not covered by a modern award or enterprise agreement in his employment with the Respondent. Because of this finding, s.389(1)(b) does not apply to give rise to consultation obligations in relation to a genuine redundancy, which I will discuss further below. Was the dismissal a case of genuine redundancy? [54] Section 389 of the Act, titled “Meaning of Genuine Redundancy” provides: (1) A person’s dismissal was a case of genuine redundancy if: (a) The 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 [2025] FWC 3179 8 (b) The enterprise of an associated entity of the employer. The Respondent’s Case [55] The Respondent submits that this is case of genuine redundancy because the job of the Applicant was no longer required to be done by anyone; that the Applicant is award free, but that there was consultation about its decision; and finally, that there were no alternative positions available within the Respondent or any relevant associated entity. [56] In support of this submission, both Mr Medina and Mr Edmunds gave sworn evidence of the Respondent’s position. Their evidence was that in early 2025 the Respondent was forced to responded to a significant downturn in its financial position that put its solvency and banking covenants at risk. Part of this response include developing and initiating a “cost out” program aimed at streamlining operations and reducing duplication. [57] As Chief Financial Officer, Mr Edmunds led the review of finance related roles as part of this process, including Mr Yin’s position as Senior FP&A Analyst. Mr Edmunds’ role identified Mr Yin’s position was largely transactional and limited, focused primarily on budget forecasting, variance reporting and portfolio specific financial analysis. Further, identifying the Respondent’s needs had shifted to require a more senior strategic finance role to support group wide forecasting, billing oversight, commercial reporting and pricing. [58] He further concluded that these responsibilities required cross-functional leadership, executive level reporting and stakeholder engagement beyond the skills and experience of Mr Yin. He made this assessment on his experience working directly with Mr Yin. As a result, he determined the duties previously performed by Mr Yin would be absorbed into a new position of Group Finance Manager.7 This new role was designed to lead consolidated reporting, forecasting, revenue analysis, and price transformation initiatives as well as assuming responsibility for group billing and receivables. And that it was a consolidation of the Applicant’s position and that of a previously existing unfilled financial controller’s position. [59] Mr Edmunds’ evidence was that the decision to absorb Mr Yin’s functions into this new and more senior role was based on the genuine operational and strategic needs of the business, not Mr Yin’s performance, attendance or otherwise. His estimate of the ongoing forward annual savings for the business because of this decision were approximately $200,000.00. Adding further, that the total audited estimated savings of the cost out program involving removal of 52 roles, including that of Mr Yin, was $5.4million per year. And indicated the business is currently engaged in a further restructure estimated to achieve a 20% reduction in its administration staffing costs.8 [60] Mr Edmunds accepts he did not make Mr Yin aware of an opportunity to apply for the new Group Finance Manager’s position. His evidence is he made this decision as he did not consider Mr Yin suitable for the position based on his assessment of his skills and experience.9 His further evidence is that because of Mr Yin’s absences from work and the uncertainty arising of when he could return to fulltime work, he consulted Mr Medina about what could be done, given the business needs at the time. [2025] FWC 3179 9 [61] In consultation with Mr Medina, Mr Edmunds submits Mr Pritchard was engaged on short-term fixed contract to pick up Mr Yin’s work to ensure the business needs continued to be met. He accepts Mr Pritchard was effectively performing the same work as Mr Yin, but was a fixed-term contractor, maintaining this was only due to the fact Mr Yin was absent for full time work at the time. Further explaining that Mr Pritchard’s contract ended in early May 2025.10 [62] Mr Edmunds’ evidence is that at the time he identified the opportunity to absorb and consolidate Mr Yin’s position in January, it was on the basis this opportunity could be realised by May 2025 as business circumstances allowed for work to be transitioned, completed and absorbed. He accepts that up until this time Mr Yin’s position continued to be required to be performed and that his absence necessitated Mr Pritchard’s engagement.11 [63] His evidence is that, following board approval, he initiated the recruitment process for the Group Finance Manger’s position towards the end of March 2025. Following a period of leave, he returned to the selection process confirming a candidate for employment commencing 15 May 2025.12 He submits the position description prepared for this position was off a pro- forma document dated December 2024. [64] Mr Edmunds’ evidence is the Respondent sought to genuinely engage in the redundancy consultation process with Mr Yin about its decisions and had Mr Yin engaged in this process he may and been able to identify alternative options or positions. Mr Medina gave evidence of the attempts made by the Respondent to consult with Mr Yin about its decisions to make his position redundant. His evidence is that he made all reasonable attempts to engage in this process. That when he first advised Mr Yin of the potential redundancy, Mr Yin indicated he wanted to engage but requested more time to arrange a representative and sought the meeting be delayed. Mr Medina granted this request, adjourning the meeting for 6 days to 1 April as per his usual practice. He accepts he did not seek to confirm Mr Yin’s availably to this meeting and expected him to attend. [65] When Mr Yin advised he was no longer well enough to attend work after he was informed of the potential redundancy, Mr Medina accepts he concluded Mr Yin’s condition worsened because he was notified his position was potentially redundant. He made further attempts to engage Mr Yin in a discussion about his position and redeployment opportunities. When Mr Yin still failed to engage, he indicated he could do so in writing and provided him a further final opportunity to attend a meeting on April 14. [66] Mr Medina’s evidence is that he considered Mr Yin’s skills and experience and undertook a thorough assessment of available alternative positions and could not identify any suitable options. He accepts he did not consider Mr Yin’s qualification as an accountant but maintains his assessment was sound considering Mr Yin’s overall experience and indicated had Mr Yin engaged in the consultation process this could have been discussed further.13 [67] His evidence is that he accepts the Respondent proceeded to confirm the redundancy of Mr Yin’s position on all the information it had available at the time. This included, that Mr Yin was unwell and on sick leave. Mr Medina considered this but concluded Mr Yin’s illness was associated with the decision the make his position redundant. That Mr Yin had been capable of engaging sending emails and advising the Respondent he was unwell and unable to attend [2025] FWC 3179 10 meetings he was invited to attend to discuss his position. He concluded Mr Yin did not want to engage in the consultation process and accepted he did not force him to engage in a voluntary process, adding that genuine consultation requires both parties to engage. And that ultimately, Mr Yin chose not to engage or present any reasonable explanation while he was unable to do so other than being unwell and having headaches. [68] His further evidence supports that of Mr Edmunds in relation to the decision to engage Mr Pritchard and not consider his position for a potential redundancy as he was engaged on a fixed short-term contract to meet the business needs arising from Mr Yin’s absences. The Applicant’s Case [69] The essence of Mr Yin’s arguments includes how it can be that his role can no longer be required if it is so critical that it meant he was denied leave in January and needed to be replaced by a contactor because of his absence. He disputes the legitimacy of the Respondent’s financial position, identifying how can the Respondent claim to be trying to make savings when adding expenses by engaging contractors. That the core role and duties of his position continue to be required and performed by the Respondent. That the Respondent’s contentions his position has been absorbed into a more senior role are a sham designed to conceal the real reason behind its decision, to remove Mr Yin. And finally, the Respondent has failed to meet its consultation obligations and make any genuine attempt to consider him for redeployment, retaining him or an alternative position. Submitting that the Respondent has treated him unfairly by proceeding with the decision to make his position redundant and denying him an opportunity to be genuinely consulted because he was unwell and not fit for work. On this basis, he argues he has been unfairly dismissed and seeks orders to compensation, and/or reinstatement, costs and an apology. [70] Mr Yin’s evidence is that towards the beginning of 2025 he was suffering from headaches and other symptoms that impacted his capacity to perform work. He made an application for annual leave in early January that Mr Edmunds said he would talk to him about, that he was never advised was approved or rejected. In early February, he saw his General Practitioner (GP) to seek treatment and was advised to take time off work.14 He provided his employer with medical certificates stating he was unfit for work from February 11th to 25th. On February 25th, he provided a further certificate indicating he remained unwell and would not be fit for work from then until March 10th. [71] Mr Yin accepts his employer requested him to provide further information about his sick leave and his capacity to return to work. His evidence is that they also accused him of working somewhere else and suggested he was not genuinely unwell. In a meeting with Mr Edmunds and Mr Medina on March 5th, he indicated he needed to consult with his doctor before providing further information about his condition. Making clear in the same meeting he should be able provide more information after consulting with his doctor. [72] Mr Yin saw his GP on March 9th. He felt his headaches were getting better at the time.15 On March 9 he provided Mr Medina and Mr Edmunds an updated medical certificate indicating he was fit to work from home for 3 days a week for the period of March 10th-6th April. [2025] FWC 3179 11 [73] Mr Yin accepts he received and read Mr Medina’s letter of the 26th of March advising him his role could be potentially redundant and inviting him to participate in a consultation meeting later the same day. He thought this was unfair and wanted more time before this meeting occurred. His evidence is that he asked Mr Medina to change the meeting time and expected Mr Medina to consult with him about making alternative arrangements. [74] He submits that Mr Medina changing the meeting and scheduling it for the 1st of April without seeing if he was available was unfair. His further evidence is that he became stressed, felt sick and that his headaches got worse on receiving Mr Medina’s letter.16 Because of this he went back to see his GP and was advised he was not well enough to work at all. On March 30th, he provided his employer with a medical certificate advising he was unwell from 31 March to 13th April. Providing a further certificate on April 14th advising this continued to be the case from April 14th to 27th. [75] Mr Yin accepts he received a series of emails and invitations from Mr Medina. His evidence is he was so unwell from his headaches he did not open or properly read them.17 He further accepts that there was no one else, other than Mr Pritchard, who he worked with who could have been considered for a redundancy instead of him.18 [76] Mr Yin also disputes the financial basis of the Respondent’s position. He suggests their figures could be fabrications and that do not consider recent acquisitions. In proceedings, he partly agreed that the business’s financial position had declined in the period of December 2024 to February 2025.19 Consideration [77] To determine whether Mr Yin’s redundancy was genuine the question to determine is whether the Respondent no longer required the Applicant’s job to be performed by anyone because of the operational requirement of the business. In Jones v Department of Energy and Minerals,20 Ryan J stated when describing when a redundancy may take place: “However, it is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other position, including newly created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full time, employee are redistributed to several part- time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the reorganisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position, becomes redundant.” [78] I accept the evidence of the Respondent in this regard. It is not contested that the Respondent was seeking to reorganise and reduce costs at the beginning of 2025. Both Mr Medina and Mr Edmunds have provided evidence of the reorganisation of the duties of the Applicant to Mr Edmunds and the position of Group Finance Manager. I accept this evidence and am satisfied that the role of Mr Yin was made redundant and that the reason for this decision was the operational needs to the business. [2025] FWC 3179 12 [79] Both Mr Medina and Mr Edmunds have provided genuine and credible evidence to the Commission. I have no reason to discount this evidence, considering Mr Yin’s positions and assertions. I accept the decision to make Mr Yin’s decision redundant was a sound and reasonable business decision, made after due consideration, in response to a decline in financial position that required urgent redress and operational changes because his job was no longer required to be performed by anyone after the end of April 2025. The evidence overwhelmingly supports this conclusion. As does the fact Mr Yin was just one of many other employees made redundant by the Respondent at the time. Mr Yin’s redundancy is not a sham. [80] I have considered Mr Yin’s contention his position was so critical he could not be granted leave and was needed to be replaced by a contractor because he was on leave and reject it. I have found Mr Edmunds’ and Mr Medina’s evidence of the timeline in which the decision to make Mr Yin’s position redundant was made and could take effect was credible and supported by the documentary evidence. Mr Edmunds and Mr Medina make clear the decision to engage an external contractor was needed to provide business continuity due to the uncertainty of when Mr Yin would return to work. Despite Mr Yin’s assertions, there is no evidence before me this decision was anything more. The evidence further establishes the employee undertaking the restructured role did not commence employment until May 15th and that Mr Pritchard’s contract ended early the same month. [81] I have also considered Mr Yin’s contentions that he has not been treated fairly and been denied an opportunity to be genuinely consulted about his position’s redundancy because he was unwell. While I consider Mr Medina may well have done more to enquire into Mr Yin’s availability, qualifications and poor health, in the circumstances where Mr Yin declined to provide any additional information, attend meetings or do anything other than provide medical certificates, I am satisfied the Respondent has taken more than reasonable steps to engage in genuine consultation. In reaching this conclusion, I am further satisfied this the case in circumstances where it is not in dispute, and I have been satisfied, Mr Yin was award and agreement free and no genuine consultation obligations apply. [82] In reaching this conclusion, I have also considered Mr Yin’s evidence. Before the Commission, when pressed, all Mr Yin would reveal of his medical condition was he suffered headaches, was not well enough to engage in consultation, read, or even check emails. I found his evidence evasive, without cause or explanation. I further found his evidence that he could manage to see his doctor and send timely emails providing doctors certificates to his employer but could not even read or open the emails he saw from his employer when he opened his inbox knowing they wanted to consult with him about his position implausible.21 Merits - Was the dismissal harsh, unjust or unreasonable? [83] I have found that the Applicant was dismissed on the grounds of a genuine redundancy. Accordingly, I am satisfied that the requirements of s.396 have been met and for completeness have also concluded that the dismissal was not harsh, unjust or unreasonable for the reasons set out below. [84] Section 387 of the Act provides for the criteria for consideration whether a dismissal was harsh, unjust or unreasonable: [2025] FWC 3179 13 “387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person-- whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant.” [85] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:22 “It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” [86] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter,23 and now turn to each of these criteria below. [2025] FWC 3179 14 s.387(a) Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees) [87] In order to be a valid reason, the reason for the dismissal should be “sound, defensible, or well founded”24 and should not be “capricious, fanciful, spiteful or prejudiced.”25 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.26 [88] The reasons given for the termination of the Applicant’s employment are that this was a case of genuine redundancy. I have found this to be the case. I am satisfied, as required, that this is a valid reason. This finding weighs against a finding that the dismissal was harsh, unjust or unreasonable. s.387(b) Whether the person was notified of that reason [89] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).27 [90] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,28 in explicit,29 plain and clear terms.30 [91] In the circumstance of this case, Mr Yin was clearly notified his position was potentially redundant and that ultimately his employment would be coming to an end on this basis. [92] I find this factor weighs in favour of the Respondent. s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [93] This factor is not relevant to the facts of this case. s.387(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal [94] This factor is not relevant to the facts of this case. It is not contested, however, that a request of the Applicant for a support person was made and unreasonably refused. s.387(e) If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal [95] As this dismissal did not relate to unsatisfactory work performance, this factor is not relevant to the circumstances of this case and its determination. s.387(f) The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and s.387(g) - Whether The degree to which [2025] FWC 3179 15 the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed [96] The Respondent is an employer of significant size and resources with dedicated human resource management expertise. I am satisfied this is not a relevant factor in this case. s.387(h) Any other matters that the FWC considers relevant [97] Neither party brought any other relevant matters to my attention I consider relevant to this case. I therefore consider this a neutral factor. Conclusion [98] For the reasons set out above, I have found the termination of the Applicant’s employment to be a genuine redundancy within the meaning of the Act. I have also considered and made findings in relation to each matter specified in s.387 of the Act as relevant and given each due weight in determining whether the termination was harsh, unjust or unreasonable and I am satisfied this is not the case. [99] Accordingly, the application is dismissed for want of jurisdiction. COMMISSIONER Appearances: L Yin as the Applicant. R Medina on behalf of the Respondent. Hearing details: 2025. Melbourne: August 13. Printed by authority of the Commonwealth Government Printer <PR792943> [2025] FWC 3179 16 1 Witness Statements of Grant Edmunds and Rabi Medina, Court Book p.71-78 and 61-65. 2 Medical Certificate dated 8 March 2025, Witness Statement of Luca Yin, Court Book p.35. 3 Form F3 Employer Response, Court Book p.163. 4 MA000019. 5 MA000002. 6 MA000104. 7 Transcript PN137-140. 8 Transcript PN155-167. 9 Transcript PN309. 10 Transcript PN107. 11 Transcript PN121-122. 12 Transcript PN126. 13 Transcript PN715-716. 14 Transcript PN864. 15 Transcript PN929-923. 16 Transcript PN956-960. 17 Transcript PN1044-1054. 18 Transcript PN1105-1109. 19 Transcript PN1127. 20 (1995) 60 IR 304. 21 Transcript PN1080-1087. 22 (1995) 131 ALR 422 at [128]. 23 (1995) 185 CLR 410 at [465]. 24 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373]. 25 Ibid. 26 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]. 27 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55]. 28 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151]. 29 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 30 Ibid.