Redundancy Consultation Failures: What Employers Need to Know
Redundancy is often treated as a business decision, but employers should remember that a genuine operational reason is only one part of the legal test.
A recent Fair Work Commission decision, Horsnell v CEVA Logistics (Australia) Pty Ltd [2026] FWC 70, is a useful reminder that a redundancy may still be found to be unfair if the employer fails to comply with consultation obligations or properly consider redeployment. In that case, CEVA (the employer) argued that the dismissal was a genuine redundancy and, alternatively, that the dismissal was not harsh, unjust, or unreasonable. Both arguments failed.
Key Takeaways for Employers
Employers should not assume that a restructure will automatically amount to a genuine redundancy.
Before confirming a redundancy, employers should:
check whether a modern award or enterprise agreement applies;
carefully review the relevant classification structure, including for supervisors and managers;
comply with any consultation obligations before making a final decision;
discuss measures to avoid or reduce the adverse effects of the proposed redundancy;
identify and raise available redeployment opportunities with the employee;
provide details of vacant roles in writing;
avoid assuming the employee can access internal systems, portals, emails, or newsletters; and
carefully document the consultation and redeployment process.
What Happened in the CEVA Case?
Ms Horsnell (the employee) was employed as an Operations Supervisor at a CEVA warehouse in NSW. She had been employed for just under 12 months when her role was made redundant as part of a restructure.
CEVA raised two defences to her unfair dismissal claim:
that the dismissal was a genuine redundancy; and
that the dismissal was not harsh, unjust or unreasonable.
The Fair Work Commission rejected both arguments. The decision turned on three key issues: (1) award coverage, (2) consultation, and (3) the genuine redundancy defence under the Fair Work Act 2009 (Cth).
Issue 1: Award Coverage
CEVA argued that no modern award applied to Ms Horsnell. The Commission disagreed. It found that Ms Horsnell was covered by the Road Transport and Distribution Award 2020 as a distribution facility employee level 4.
That classification comprised supervisory responsibilities, including responsibility for the facility and the ability to supervise and direct other employees.
This is an important reminder for employers. A supervisor, team leader, coordinator, or manager may still be award covered, depending on the terms of the applicable award and the duties actually performed. Employers should not assume that an employee falls outside award coverage simply because they have a supervisory title.
Issue 2: The Consultation Failure
Because Ms Horsnell was covered by the Road Transport and Distribution Award 2020, CEVA was required to comply with the consultation obligations in that Award.
Section 30 of the Award required CEVA to discuss major workplace change, including measures to avoid or reduce the adverse effects of the change. This included redeployment. At the time of Ms Horsnell’s dismissal, CEVA had 18 vacant jobs available. However, CEVA did not tell Ms Horsnell about those roles. It also did not provide her with details of those vacancies in writing.
CEVA assumed that Ms Horsnell could access the internal careers portal. However, she was on leave and did not have her work laptop. As a result, she could not access the portal.
The Commission found that CEVA:
failed to discuss the options it had considered;
failed to provide details of the 18 vacant jobs in writing; and
effectively placed the burden on Ms Horsnell to find her own redeployment opportunities. That was not consultation.
Issue 3: Genuine Redundancy Defence Failed
Under section 389 of the Fair Work Act 2009 (Cth), a dismissal will be a genuine redundancy if:
the employer no longer requires the employee’s job to be performed by anyone because of changes in operational requirements; and
the employer has complied with any applicable consultation obligation in a modern award or enterprise agreement; and
redeployment within the employer's enterprise or the enterprise of an associated entity would not have been reasonable in all the circumstances.
In CEVA’s case, the Commission accepted that there had been a restructure. However, because CEVA failed to comply with the consultation obligations in the Road Transport and Distribution Award 2020, the dismissal was not a genuine redundancy under section 389. This meant that CEVA could not rely on the genuine redundancy defence to defeat the unfair dismissal claim. The Commission also found that the dismissal was harsh, unjust, or unreasonable.
Redeployment Must Be Actively Considered
The decision is a reminder that redeployment must be actively considered. Where vacant roles exist, employers should not expect the employee to identify those roles without assistance.
Employers should consider:
what vacancies exist at the time of consultation;
whether any vacancies are likely to arise shortly;
whether there are roles within associated entities;
whether the employee has transferable skills;
whether the employee could perform a role with training;
whether the employee may be interested in roles at a different level, location, or pay rate; and
whether the employee has been given enough information to make an informed decision.
Employers should avoid making assumptions about what an employee will or will not accept. A role that appears unsuitable to the employer may still be something the employee wishes to consider.
Consultation Is More Than Notification
The CEVA decision highlights that consultation is not just telling an employee that their position is redundant. Consultation requires genuine discussion before a final decision is made.
This includes discussing:
the proposed change;
the likely effect on the employee;
measures to avoid or reduce adverse effects;
available redeployment opportunities; and
any matters raised by the employee in response.
Employers should also provide relevant information in writing, particularly where the employee is on leave, away from the workplace, or does not have access to internal systems. An internal job portal may be useful, but it is not a substitute for direct consultation about available vacancies.
Recommended Process Before Confirming Redundancy
Before making a role redundant, employers should take a structured approach.
Employers should consider:
preparing a clear business case for the proposed restructure;
identifying which employees are affected and why;
checking whether any modern award, enterprise agreement, contract, or policy applies;
reviewing the employee’s classification and duties, not just their job title;
giving the employee written information about the proposed change;
holding a consultation meeting before any final decision is made;
discussing measures to avoid or reduce the adverse effects of the redundancy;
identifying all available redeployment opportunities;
providing details of those roles in writing;
checking whether the employee can access any internal systems referred to during consultation;
considering the employee’s response; and
documenting each step in the process.
A redundancy decision should not be treated as final before consultation occurs. Consultation should take place while there is still a genuine opportunity for the employee to influence the outcome.
Summary
Even where there is a genuine business reason for a restructure, a defective consultation process may expose the employer to an unfair dismissal claim.
A redundancy is not automatically genuine simply because the employer has a valid business reason for removing a role. Employers must also comply with any applicable consultation obligations and properly consider redeployment.
The CEVA decision is a timely reminder that employers should:
check award coverage carefully;
remember that supervisors may still be award-covered;
consult meaningfully before making a final decision;
raise available vacancies directly with affected employees; and
provide redeployment information in writing.
Assumptions about what an employee can access will not satisfy consultation obligations.
If your business is considering redundancies, restructuring, or changes to employee roles, contact Jenkins Legal and Advisory for tailored advice before taking further steps.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
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