When a Redundancy Is Not a Genuine Redundancy – But the Dismissal Still Stands

A detailed examination of the Fair Work Commission’s decision in Argent v P & C Excavations Pty Ltd [2025] FWC 3839.

The Fair Work Commission has delivered an instructive decision in the matter of Mr Jason Argent, a machine operator engaged on long-standing seasonal railway maintenance work, who alleged he had been unfairly dismissed by P & C Excavations Pty Ltd.

The outcome was ultimately unfavourable for the worker, yet the reasoning demonstrates important lessons for both employees and employers—particularly those relying heavily on casual engagements, seasonal work programs, and contract-dependent labour supply arrangements.

This article carefully breaks down the findings and explains how the Commission navigated issues of minimum employment period, casual continuity, genuine redundancy, and the statutory fairness criteria.

When a Redundancy Is Not a Genuine Redundancy – But the Dismissal Still Stands

Background: A Long Association With the V/Line Tie Gang

Mr Argent had worked as a machine operator on the V/Line Tie Gang for over a decade through different preferred tenderers. His work followed the typical seasonal pattern: starting around March each year and finishing when railway sleeper replacement programs ended. He had worked for this particular employer several times across 2017, 2019, 2023, 2024 and again in 2025.

When work resumed in March 2025, he returned to the scarifier machine at Swan Hill. On 24 April, he received an early-morning call from the company director advising him that the following day would be his last. No meeting, no discussion, no prior warning. He was told to leave the company vehicle on site and make arrangements to return home.

He filed an unfair dismissal claim soon after.

The First Barrier: Minimum Employment Period

As a casual employee, Mr Argent had to establish:

1. That his employment was regular and systematic, and

2. That he had a reasonable expectation of continuing employment.

The employer argued that seasonal breaks severed continuity, meaning he had not reached the six-month minimum period.

The Commission rejected this argument, pointing to:

• The worker’s ongoing expectation of returning each year,

• The employer’s own conduct—particularly allowing him to keep the company vehicle over the off-season, and

• The regular and systematic nature of his engagement.

This finding alone is significant, as many employers assume seasonal shutdowns automatically break continuity. Here, the circumstances demonstrated otherwise.

Was He Dismissed? The Employer Said No

The employer argued that this was not a dismissal at all but simply the natural end of another casual engagement, consistent with the pattern of previous years.

The Commission disagreed. Evidence showed:

• He was expressly told his employment was ending on a specific date.

• The employer’s own F3 employer response form described it as a dismissal due to redundancy.

The Commission held that this was plainly a termination at the initiative of the employer.

Was It a Genuine Redundancy?

This was the centrepiece of the employer’s argument.

The employer had received notification from V/Line that two machines were no longer required after 28 April. The director decided that two employees therefore had to be let go.

For a redundancy to be “genuine” under s.389 of the Fair Work Act, three elements are required:

1. The job is no longer required due to operational changes.

2. The employer complies with any award-based consultation requirements.

3. It would not have been reasonable to redeploy the employee.

The Commission accepted part of the employer’s case

The reduction in V/Line-allocated machines did create genuine operational pressure. Evidence supported the employer’s need to reorganise staffing.

But the redundancy still failed

The employer had an obligation to consult under the applicable awards (Rail Industry Award or Building and Construction General On-site Award). Mr Argent received no consultation—only a brief phone call telling him his employment would end the next day.

The Commission found:

• The lack of consultation meant the redundancy was not genuine.

• A different outcome might have been possible had the worker been consulted—he may have accepted leave and returned when work resumed at Mildura.

This is a critical point: even where the business genuinely needs to restructure, failing to consult will normally defeat a redundancy argument.

The Fairness Test: Was the Dismissal Harsh, Unjust or Unreasonable?

Once the redundancy argument fell away, the Commission assessed the dismissal under s.387 of the Fair Work Act.

1. Valid Reason

The Commission found a valid reason existed. The employer was responding to operational reduction (loss of two machines). This was described as “sound, defensible and well-founded.”

2. Notification of the Reason

Although brief, the phone call did inform Mr Argent that the reason was operational need. This weighed in the employer’s favour.

3. Opportunity to Respond

Not applicable, as the dismissal was not related to conduct or capacity.

4. Support Person

Not applicable.

5. Warnings

Not applicable; performance was not an issue.

6 & 7. Size of Business and HR Resources

These were treated as neutral. The Commission acknowledged the employer had limited HR capability but did not consider this determinative.

8. Any Other Relevant Matter

Nothing further was raised.

Final Outcome: Application Dismissed

Even though the redundancy was not genuine due to failure to consult, the dismissal still stood. The Commission held that the decision to end employment was based on a legitimate operational reason, and when the fairness criteria were weighed together, the dismissal was not harsh, unjust, or unreasonable.

The application was dismissed.

Key Takeaways

For Employees

• A redundancy can be ruled non-genuine and yet still not constitute an unfair dismissal.• Consultation failures weaken an employer’s case but do not guarantee a win.• Casual workers can still establish continuity of service depending on conduct, expectations, and patterns of engagement.

For Employers

• Consultation obligations under awards apply to casual employees.

• A short phone call advising of termination is rarely sufficient procedural fairness.

• Courts and tribunals examine the reality of the employment relationship, not simply the label “casual” or historical patterns of seasonal work.

• Even with a valid operational reason, procedural fairness remains essential.

Why This Decision Matters

This decision reinforces a nuanced point of unfair dismissal law: a failure to satisfy redundancy requirements does not automatically render a dismissal unfair. The Commission is required to examine all fairness factors together.

It also highlights ongoing complexities around casual employment, particularly within industries operating on contract-dependent, seasonal or itinerant workforces.

Employers must be mindful that obligations under modern awards apply regardless of worker classification and that consultation is not a box to be ticked—it is a statutory requirement.

Read the full decision HERE