Is it unfair dismissal? CFO told the worker in January that the employer was unable to accommodate the leave request because he was required to perform critical work
A senior financial analyst challenged his termination from an aged care services provider, arguing that his role was so critical that he'd been denied leave in January, yet was suddenly made redundant three months later.
The worker contended the employer's claims about absorbing his position into a more senior role were a sham designed to conceal the real reason for his removal, and that he'd been denied genuine consultation because he was unwell during the redundancy process.
The employer maintained that the termination was a legitimate case of genuine redundancy driven by a $5.4 million cost-out program that eliminated 54 roles, and that the worker had failed to engage in consultation despite multiple opportunities.
Employment background and cost-out program
The worker commenced full-time employment with the aged care services provider on 18 March 2024. At the time his employment ended, he was working as a senior financial planning and analysis analyst.
During his employment, the worker's direct manager was the employer's Chief Financial Officer (CFO). Towards the end of 2024, the employer experienced a downturn in its financial performance that had the potential to put its solvency and banking covenants at risk.
In response, the employer developed a restructuring cost-out program that included the elimination of 54 roles across its operations that would deliver significant annual savings. The worker's role was identified as part of this cost-out program.
In early 2025, the employer initiated a consultation program with employees regarding its proposed restructuring. In early January 2025, the worker sought to take a period of annual leave from 28 January to 7 February.
On 14 January, he was told by the CFO that the employer was unable to accommodate his leave request because he was required to perform critical work at the time. In early February 2025, it was necessary for the worker to take a period of personal leave to seek treatment for a medical condition.
He provided the employer with medical certification that he would be unfit for work from 11 February to 24 February.
On or around 18 February, an HR representative advised the CFO that, as the worker had a significant number ofunplanned periods of leave, he should be required to provide a return-to-work certificate prior to returning to the workplace.
On 19 February, the CFO sent the worker an email checking in on his well-being and advising him that HR would reach out to him about his periods of leave and returning to work.
On the same day, the employer's HR manager emailed the worker requesting he provide the employer with a fit-for-work clearance confirming his capacity and requirements for his return to work on Monday, 24 February.
Extended sick leave and contractor engagement
On 25 February, the worker sent the CFO a further medical certificate indicating he remained unwell and was unfit for work from 25 February to 10 March.
On 27 February, the HR manager emailed the worker acknowledging the employer's receipt of his medical certificate and seeking a suitable time to discuss what, at that time, was four weeks of unplanned personal leave.
The worker responded to the HR manager the same day, indicating he would be able to provide an update on his condition on Wednesday, 5 March.
The next day, the HR manager sent the worker a meeting invitation for Wednesday, 5 March. The worker failed to attend this meeting in person but presented on Microsoft Teams.
The worker 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 toreturn to work.
On 9 March, the worker provided the HR manager and the CFO with a medical certificate indicating he was able to return to work from home for three days a week from the period of 10 March to 6 April.
On 11 March, the employer engaged an external contractor to meet its need for temporary support in financial reporting and forecasting created by the worker's unplanned absences and ongoing uncertainty about his capacity to return to full-time work.
The contractor was engaged on a fixed-term temporary basis that ended in May 2025. On 26 March, the HR manager sent the worker an email advising him that the employer 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'. The worker responded to the HR manager seeking a postponement to the meeting so he could arrange a support person to attend. The HR manager accommodated this request, advising the worker that the meeting would now be held the following week.
Consultation attempts and position termination
On 30 March, the worker emailed the HR manager and the CFO, providing them with a medical certificate advising he was no longer fit for work from 31 March to 13 April 2025.
On 31 March, the HR manager emailed the worker and advised him that he was required to attend the rescheduled consultation meeting the following day and advised him that a failure to attend could result in the consultation proceeding without his input.
The worker did not participate in the consultation meeting on 1 April or provide any additional reason why he was not able to attend.
On the same day, the HR manager sent the worker 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 5 pm the following day.
The worker emailed the HR manager the following day, advising that, as he was not fit for work, he was unable to participate in the consultation process and would do so when he was able.
The HR manager replied to the worker, noting he advised the employer he was medically unfit after being advised his position may be redundant.
The HR manager further advised the worker that he would provide him with a further final opportunity to participate in the consultation process in a meeting on 14 April and that no further opportunities would be provided if the worker failed to attend this meeting.
On 13 April, the worker emailed the HR manager advising he would not be able to attend the consultation meeting the following day and would provide a medical certificate the next day.
The HR manager responded to this email advising the worker that he continued to be expected to attend the consultation meeting on 14 April as scheduled. The worker did not participate in the consultation meeting on 14 April.
Later that day, he sent the HR manager 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.
On 17 April, the HR manager emailed the worker advising him that his position was made redundant as part of the employer's cost-out restructure program, terminating his employment with notice and entitlements.
At the time of his termination, the worker was one of 24 other people being made redundant by the employer as part of this program, four of whom were part of the HR manager's people and culture team.
Employer's evidence on restructuring decision
The employer submitted that this was a case of genuine redundancy because the job of the worker was no longer required to be done by anyone, that the worker was award-free but that there was consultation about its decision, and finally that there were no alternative positions available within the employer or any relevant associated entity.
Both the HR manager and the CFO gave sworn evidence of the employer's position. Their evidence was that in early 2025, the employer was forced to respond to a significant downturn in its financial position that put its solvency and banking covenants at risk.
Part of this response included developing and initiating a cost-out program aimed at streamlining operations and reducing duplication.
As CFO, the manager led the review of finance-related roles as part of this process, including the worker's position as Senior Financial Planning & Analysis Analyst.
The CFO's review identified the worker's position was largely transactional and limited, focused primarily on budget forecasting, variance reporting and portfolio-specific financial analysis.
Further, the employer's needs had shifted to require a more senior strategic finance role to support group-wide forecasting, billing oversight, commercial reporting and pricing.
The CFO concluded that these responsibilities required cross-functional leadership, executive-level reporting and stakeholder engagement beyond the skills and experience of the worker.
As a result, he determined the duties previously performed by the worker would be absorbed into a new position of Group Finance Manager.
The CFO's evidence was that the decision to absorb the worker's functions into this new and more senior role was based on the genuine operational and strategic needs of the business, not the worker's performance, attendance or otherwise.
His estimate of the ongoing forward annual savings for the company because of this decision was approximately $200,000.
He added that the total audited estimated savings of the cost-out program involving the removal of 52 roles, including that of the worker, was $5.4 million per year.
The CFO accepted that he did not make the worker aware of an opportunity to apply for the new Group Finance Manager position.
His evidence was that he made this decision as he did not consider the worker suitable for the position based on his assessment of his skills and experience.
Worker's challenge to redundancy legitimacy
The CFO's further evidence was that because of the worker's absences from work and the uncertainty arising about when he could return to full-time job, he consulted the HR manager about what could be done, given the business needs at the time.
In consultation with the HR manager, the CFO submitted that the contractor was engaged on a short-term fixed contract to pick up the worker's work to ensure the business needs continued to be met.
He accepted that the contractor was effectively performing the same work as the worker, but was a fixed-term contractor, maintaining that this was only due to the fact that the worker was absent from a full-time job at the time. He further explained that the contractor's contract ended in early May 2025.
The essence of the worker's arguments included questioning how his role could no longer be required if it was so critical that he was denied leave in January and needed to be replaced by a contractor because of his absence.
He disputed the legitimacy of the employer's financial position, questioning how the employer could claim to be trying to make savings when adding expenses by engaging contractors.
He argued that the core role and duties of his position continued to be required and performed by the employer.
He contended that the employer's claims that his position had been absorbed into a more senior role were a sham designed to conceal the real reason behind its decision to remove the worker.
Finally, the worker argued that the employer had failed to meet its consultation obligations and had made no genuine attempt to consider him for redeployment, retention, or an alternative position.
He submitted that the employer had 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 argued he had been unfairly dismissed and sought orders for compensation and/or reinstatement, costs and an apology.
Commissioner's assessment of the evidence
The Commissioner examined whether the employer no longer required the worker's job to be performed by anyone because of the operational requirements of the business.
The Commissioner stated: It is not contested that the [employer] was seeking to reorganise and reduce costs at the beginning of 2025. Both [the HR manager] and [the CFO] have provided evidence of the reorganisation of the duties of the [worker] to [the CFO] and the position of Group Finance Manager. I accept this evidence and am satisfied that the role of [the worker] was made redundant and that the reason for this decision was the operational needs of the business.
The Commissioner stated: Both [the HR manager] and [the CFO] have provided genuine and credible evidence to the Commission. I have no reason to discount this evidence, considering [the worker's] positions and assertions. I accept the decision to make [the worker's] position 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 Commissioner stated: I have considered [the worker's] contention that his position was so critical he could not be granted leave and needed to be replaced by a contractor because he was on leave and rejected it. I have found [the CFO's] and [the HR manager's] evidence of the timeline in which the decision to make [the worker's] position redundant was made and could take effect was credible and supported by the documentary evidence.
The Commissioner stated the decision to engage an external contractor was needed to provide business continuity due to the uncertainty about when the worker would return to work.
Findings on consultation and credibility
The Commissioner stated: I have also considered [the worker'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 [the HR manager] may well have done more to enquire into [the worker's] availability, qualifications and poor health, in the circumstances where [the worker] declined to provide any additional information, attend meetings or do anything other than provide medical certificates, I am satisfied the [employer] has taken more than reasonable steps to engage in genuine consultation.
The Commissioner stated: Before the Commission, when pressed, all [the worker] 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.
The Commissioner found that the termination of the worker's employment was not harsh, unjust or unreasonable after considering all the material and evidence presented by both parties. The Commissioner further found and was satisfied that the employer's decision to bring the worker's employment to an end was a case of genuine redundancy. The application was dismissed for want of jurisdiction.
https://www.hcamag.com/au/specialisation/employment-law/senior-analyst-denied-leave-for-critical-work-then-position-eliminated-three-months-later/554919
