A landscaping business made its project coordinator redundant as part of cost cuts that also saw its directors go without wages. Commissioner Yilmaz has found the redundancy genuine and dismissed the worker’s unfair dismissal application in [2026] FWC 3950.
The employer is the Trustee for Barefoot Grass Unit Trust, trading as Barefoot Projects. The worker started as Project Coordinator on 16 September 2025. He was told of a risk of redundancy on 26 May 2026, given notice on 1 June 2026, and dismissed with effect from 8 June 2026. He applied under s.394 of the Fair Work Act 2009 on 28 June 2026.
A genuine redundancy is a complete answer to an unfair dismissal claim. Under s.385, a dismissal that is a case of genuine redundancy cannot be unfair, so the Commission does not reach the merits. Section 389 sets the test.
(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.
The worker did not dispute that the business was under financial stress. He sought compensation of six weeks’ pay, $11,884.62 including superannuation, and did not seek reinstatement because the relationship had broken down.
that the process was rushed and predetermined, that his duties did not cease to exist but were reallocated into new “hybrid roles”, and that his redeployment proposals across Barefoot Projects and a related entity, Barefoot Build, were not properly considered because he was not given a proper written explanation of why they were unsuitable. He tendered a Seek advertisement for a Construction Supervisor at Barefoot Build, which he said was an equivalent role that should have been offered to him.
through director Daniel Clohesy that the Project Coordinator role no longer existed and its tasks had been spread across other staff. Mr Clohesy gave evidence that he spent about two months working through scenarios with a business coach and accountant, that he and his wife went without wages, and that an apprentice and a second in charge who resigned were not replaced. He said Barefoot Build had two employees and contracted out all its projects, and that the Construction Supervisor role was advertised about three months after the dismissal, required trade skills the worker did not have, and was not available in June 2026.
that the role no longer existed because of operational requirements, namely the employer’s serious financial stress, and that the employer complied with the consultation clause, clause 27 of the Gardening and Landscaping Services Award 2020. “Consideration of redundancy was not taken lightly nor hastily,” the Commissioner said.
On redeployment, the Commissioner accepted that the worker’s suggestions were considered but did not reduce overheads. His email of 27 May 2026 proposed moving into a role estimating and tendering small projects valued between $2m and $5m. “Unfortunately, this approach would not reduce overhead costs,” the Commissioner said, adding that “The email reads as accepting of the need to make the position redundant.”
The Commissioner held that nothing in the Award or the Act obliged the employer to convince the worker that his proposals were unworkable. Clause 26.4 of the Award obliges an employer to give prompt consideration to issues employees raise during consultation, and the Commissioner found Mr Clohesy had done so. The Barefoot Build role was not available at the time and, “even if it had been available, it was not a like position.”
The termination letter wrongly referred to severance pay. The Commissioner accepted the error was made by the external human resources company the employer engaged, that it was immediately corrected, and that it did not alter the genuine redundancy finding.
At a glance
- Parties: A former project coordinator v The Trustee for Barefoot Grass Unit Trust t/as Barefoot Projects
- Citation: [2026] FWC 3950, Commissioner Yilmaz, Melbourne, 15 October 2026
- Section: Fair Work Act 2009, ss.385, 389, 394, 396
- Award: Gardening and Landscaping Services Award 2020, clauses 26.4 and 27
- Outcome: Genuine redundancy; application dismissed
- Who it affects: Employers restructuring by distributing a role’s duties among remaining staff
The matter was heard in person in Melbourne on 29 September 2026 and decided on 15 October 2026. The decision applies the Explanatory Memorandum’s example of a genuine redundancy where an employer restructures and “the tasks done by a particular employee are distributed between several other employees”. The Commissioner also found that the Construction Supervisor role later advertised by the related entity, Barefoot Build, did not make redeployment reasonable, because it was not available when the worker was dismissed and was not a like position.
Source: [2026] FWC 3950
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