A Reservoir archery entertainment business removed its general manager role in a February 2026 restructure without holding the discussions required by the modern award that covered the employee. The Fair Work Commission found that failure meant the dismissal could not be a genuine redundancy. It then found the dismissal was not harsh, unjust or unreasonable, and dismissed the application.
The applicant was dismissed on 18 February 2026 by The Trustee For Aabs Melbourne Unit Trust trading as Archery Attack, and lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 on 11 March 2026, seeking compensation. The employer objected on the basis that the dismissal was a case of genuine redundancy. Deputy President Masson heard the jurisdictional objection and the merits together in Melbourne on 16 September 2026 and issued his decision on 8 October 2026.
At a glance
- Parties: A former general manager v The Trustee For Aabs Melbourne Unit Trust trading as Archery Attack
- Citation: [2026] FWC 3856 (Deputy President Masson)
- Sections: Fair Work Act 2009 ss.387, 389, 394
- Award: Amusement, Events and Recreation Award 2020, clause 27 (consultation)
- Outcome: Dismissal not a genuine redundancy, but not unfair. Application dismissed.
Half the wage bill sat in one role
The applicant rejoined the business in June 2024 as a casual at $38.00 an hour, then took up the general manager role on or about 2 December 2024 under a trial arrangement while he and his father explored buying into the business, which was valued at $600,000. From 13 January 2025 he worked a regular 80 hours a fortnight at a flat $50 an hour, about $100,000 a year, or $2,000 a week.
Managing Director Chris Firgaira gave evidence that the Reservoir venue had been losing money for three consecutive years: $75,870 in 2023, $89,515 in 2024 and $61,906 in 2025. In the applicant’s last full month of employment, his remuneration cost including superannuation was $9,700, more than half the venue’s total wages bill of $18,711.
Purchase discussions came to an end when Chris Firgaira declined the applicant’s offer to buy the business, in a message sent on 1 December 2025. On 27 January 2026 he emailed the applicant: “At present, the arena is not operating profitably at its existing cost base, and changes are required to ensure the venue can at least sustain itself. As part of this restructure, we won’t be continuing the role beyond mid-February.” A confirmation email followed on 4 February 2026 stating that the termination was “a business initiated termination due to operational restructure” and was “not performance-related”.
Staff were told of the restructure on 25 February 2026. The venue moved to a “lean” operating model, the function area and the archery range were cut, front of house was restructured, and bookings were to be staffed by a single qualified adult on site. Sales for March to May 2026 were $70,124, down from $94,587 for the same period in 2025, while expenses fell from $102,582 to $62,270. Staff hours dropped from an average of more than 300 a month to about 150 a month spread across nine casual employees.
The duties survived, the job did not
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.
that his former role continued to be performed, pointing to director Justin Firgaira now carrying out the residual duties, and that the employer never discussed the possibility of his returning to a casual event host role.
that Justin Firgaira handles phone calls, emails and rostering for 15 to 20 hours a month, unpaid, in his capacity as a director, that some maintenance tasks had been absorbed by the casual event hosts, and that nobody had been taken on to fill the former role since 18 February 2026. He accepted that after the 27 January 2026 email he did not meet the applicant to discuss the change, had not put all relevant information to him in writing, and had not invited his comment on the proposed changes.
applying the Full Bench reasoning in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488, that the reallocation of duties to others did not mean the job survived. He was “comfortably satisfied that the Applicant’s former role is no longer required to be performed by anyone because of changes in the operational requirements of the Respondent”.
On redeployment under s.389(2), the Deputy President found that keeping the general manager role was not a reasonable alternative, given the financial position, the relatively high cost of the applicant’s remuneration and the fact the role had not been replaced. He found the applicant’s evidence that he would have considered a casual event host role “unconvincing”, noting that it offered 10 to 20 hours a month against the 160 hours a month he had been working, that he had not raised it at the time, and that he had been offered a role with Bounce on 13 February 2026, before his employment ended.
The consultation limb was where the objection failed. The applicant was covered by the Amusement, Events and Recreation Award 2020, and the Deputy President found that his duties fell within at least Grade 7. Clause 27 obliges an employer to notify affected employees in writing and discuss a major change as soon as practicable after a definite decision has been made, to supply the relevant information in writing, and to give prompt consideration to any matters employees raise. The 27 January 2026 email set out some information about the removal of the role “but little else”. No discussions were held after that notification, although there was some email contact. “While I accept that the Respondent is a small business it is not relieved of the award consultation obligations,” the Deputy President said. The dismissal therefore could not be a genuine redundancy.
Why the breach did not make it unfair
Turning to s.387, the Deputy President found that the applicant was not dismissed for reasons related to his capacity or conduct, and treated the factors in ss.387(a) to (d) as neutral considerations. The employer had 12 employees and no in-house human resources specialist, but he was not persuaded that its size and contended lack of expertise was a factor, treating both ss.387(f) and (g) as neutral.
Under s.387(h) he endorsed the comments of Vice President Watson in Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239.
The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair.
Deputy President Masson found that the decision to remove the role was “soundly based on the cost and revenue results of the previous 3 years” and that the evidence of the financial imperative for change was “compelling”. The applicant had been on notice of the lean operating model from at least November 2025, had been given full access to the business’s financial records during 2025, and had conceded in cross-examination that he was seeking to stave off an earlier termination. The deficiencies in consultation had not materially altered the outcome or the timing of the redundancy.
The applicant also raised being notified on a Monday, which was a day off, and the employer’s failure to engage with his requests for clarity during January 2026. The Deputy President accepted that the employer “could and should have been more responsive”, but found that neither matter weighed in favour of a finding of unfairness. The application was dismissed, with an order to issue separately.
The decision turns on a two step outcome. The failure to meet clause 27 of the award defeated the genuine redundancy objection and sent the matter to the merits, and the same failure was then weighed under s.387(h), where the Deputy President found consultation would not have changed the outcome or the timing.
Source: [2026] FWC 3856
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