The High Court of Australia has shut down the appeal of mining giant Peabody in a landmark decision that reshapes how employers must approach redundancies. The Court confirmed that an employer can’t simply rely on the absence of vacant roles to justify a redundancy.
Instead, the Fair Work Commission can examine whether the employer could have reasonably adjusted its operations — including scaling back contractors or reconfiguring work — to retain affected employees.
In this article, we take a look at this ruling – Helensburgh Coal Pty Ltd v Bartley [2025] – that sets a new national benchmark. It requires businesses to take a more expansive and good faith approach when assessing redeployment options before dismissing staff
High Court delivers major blow to employers over redundancy claims
This case concerns Helensburgh Coal, which is a subsidiary of global coal mining company Peabody. It originated from a series of events at Helensburgh Coal’s Metropolitan Coal Mine in New South Wales following the economic impact of COVID-19. In 2020, a drop in the price of coking coal prompted the company to make production cuts and restructure its workforce. This led to a reduction of 90 direct employees, with 47 positions being made surplus to requirements. The dispute was ultimately focused on 22 of these dismissed workers, referred to as “the Employees.”
Helensburgh Coal maintained a “blended” workforce of permanent staff and external contractors supplied by Nexus Mining and Mentser. The employer claimed that the jobs of the 22 Employees were no longer required due to changes in operational requirements. The High Court accepted that on the date of their dismissal, 24 June 2020, Helensburgh Coal did not have any vacant roles to which they could be deployed. The only possibility of retaining the Employees would have necessitated action to “demobilise” the contractors engaged by Nexus or Mentser.
Fair Work found redundancies were unfair dismissals
In July 2020, the Employees filed unfair dismissal applications with the Fair Work Commission. They were represented by the Mining and Energy Union. This marked the start of a five-year legal process. The Fair Work Commission decision twice found in favour of the workers. It determined that it was “feasible” and reasonable for some of the workers to be redeployed into roles occupied by contractors. However, in between these two decisions, the Full Bench of the Fair Work Commission overturned the first finding.
But the Full Bench later upheld the Commission’s second decision in September 2022. It concluded that the replacement of contractor workers with permanent employees could not be “automatically excluded” from consideration. Helensburgh Coal then launched an unsuccessful judicial review in the Federal Court of Australia. This led to the final appeal to the High Court, for which special leave was granted in September 2024.
Employer argued its interpretation of redundancy
Helensburgh Coal’s appeal to the High Court rested on two fundamental grounds. The central issue was the interpretation of section 389(2) of the Fair Work Act 2009. This section prevents a dismissal from being a genuine redundancy if it “would have been reasonable in all the circumstances” for the person to be redeployed within the employer’s enterprise. Helensburgh Coal argued that the employer’s “enterprise” should be treated as an “objective fact as at the date of dismissal” which cannot be altered by the Fair Work Commission.
The company contended that the word “redeployed” did not authorise the Commission to “second-guess” a management decision. That is, by requiring the termination of contractor arrangements to create positions for the retrenched employees. Helensburgh Coal suggested that giving the Commission such power of reconstruction, involving “value judgments and opinions,” would adversely affect business certainty. The company said that this contradicted the objective of establishing quick, flexible and informal procedures, which is outlined in section 389(2) of the Fair Work Act 2009.
High Court sided with redundant employees
In its judgement, the High Court of Australia unanimously dismissed Helensburgh Coal’s appeal. It disagreed with the company that the Fair Work Commission “misconstrued” s389(2). The Court confirmed the Commission’s authority to inquire into whether an employer could have made changes to its workforce arrangements when assessing genuine redundancy.
It highlighted that s389 of the Fair Work Act 2009 “expressly requires” the Fair Work Commission to consider redeployment opportunities. The Court confirmed that the enterprise’s nature itself cannot be ignored. However, the manner in which the employer chooses to staff that enterprise, specifically its use of contractors, is not immune from scrutiny.
High Court: Fair Work can ask employer to make changes
The High Court of Australia rejected Helensburgh Coal’s central argument. This was that the Fair Work Commission was prohibited from asking an employer to make changes in order to create or make available a role for a worker who would otherwise be made redundant. The Court said that the statutory language, context or purpose of s389 does not support “such a proscriptive rule.”
The Court, however, offered a cautionary note. It said that it would be “unlikely” to be a “reasonable” outcome if redeployment required the termination of a job held by another person for which there was a business need. The Court said that Helensburgh Coal’s submission that redeployment must be limited to vacant jobs “could not be accepted.”
It gave the example of an employee who is dismissed from a company where an employee with the same role was about to retire the next day. The Court noted that in such circumstances, the Commission could consider whether the dismissed employee could have been redeployed to the job that would have been vacant the next day. This clarified that redeployment could sometimes be reasonable even if there was “no vacant job at that time.”
Fair Work’s decision found to be correct
The High Court of Australia also addressed the employer’s second ground of appeal, which challenged the standard of review applied by the Full Bench of the Fair Work Commission. The employer had argued that the Full Bench should have applied a “correctness standard” when reviewing the Commission’s decision.
The Court rejected this ground, confirming that even if the Full Bench had erred in applying the appropriate standard of appellate restraint, this constituted an “error within jurisdiction” and did not warrant quashing the original decision. The Court noted that accepting the employer’s argument would require the “rejection of the plain intention” of the Commonwealth Parliament.
Impact of decision on Australian workplaces
The ruling has wide-reaching implications for Australian employers, particularly those who maintain a “blended workforce” of permanent employees and external contractors. The decision confirms that, when assessing potential retrenchments, employers must adopt a detailed and broad process. This includes considering the:
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- Attributes of the redundant employee (such as skill set and experience).
- Employer’s policies and business choices, including the decision to continue using contractors.
- Specific terms of existing contracts, such as whether they are on an ‘as needs’ basis.
The ruling essentially requires employers to assess whether operations could reasonably be adjusted, including through insourcing work or replacing labour hire, before proceeding with a dismissal on the grounds of redundancy.
Fair Work unfair dismissal: Employee learns job is gone at surprise meeting
A recent Fair Work unfair dismissal case that dealt with a redundancy is Mr Sam Cossar v Laminex Group Pty Limited [2025]. Sam Cossar started working as a designer at decorative surfaces provider Laminex in June 2021. He was recruited to design kitchens for Lamiex’s subsidiary Haven Kitchen. In November 2023, Mr Coassar was promoted to the role of Design Team Leader. It was around this time that Haven and Laminex began to encounter financial difficulties.
Laminex told the Fair Work Commission that Haven had not been hitting their sales targets and were making a loss of approximately $225,000 per month. The company was also navigating “challenging” market conditions. In April 2024, Laminex began considering a business-wide restructuring. Mr Cossar’s role was earmarked for retrenchment, while seven other roles were made redundant in the weeks thereafter.
Dismissed due to role being redundant
In July 2024, Laminex announced the closure of one of its manufacturing sites via an all-staff email, which did not warn of future redundancies. Mr Cossar told the Fair Work Commission that after this he asked Laminex’s general manager if there would be more redundancies, to which she said there wouldn’t be.
Mr Cossar’s retrenchment process began on 15 August 2024 when his manager sent him a text message. The following morning the manager sent Mr Coassar an email invitation for a “Haven business update.” The email advised Mr Cossar that Laminex’s HR lead would be attending and that he was “welcome to bring a support person.”
In his Fair Work unfair dismissal claim, Mr Cossar testified that this was the first time he had seen the words “support person” and he went into the meeting thinking it would be a positive business update. He did not think it would be to discuss his termination of employment. During the meeting, Mr Cossar was advised that he was being made redundant immediately and that he would be paid out his entitlements.
Fair Work unfair dismissal claim: Believed he could’ve been redeployed to other positions
Mr Cossar subsequently lodged a Fair Work unfair dismissal claim. He argued to the Fair Work Commission that his retrenchment was not legitimate. He believed it would have been reasonable for him to be redeployed into two specific areas within Laminex.
Firstly, Mr Cossar argued he was highly suitable for the Completions Manager role he saw advertised on SEEK at 3pm on the day of his dismissal. He noted the job’s description included duties similar to his former responsibilities. Mr Cossar claimed the role had “substantially the same” key performance indicators as his previous role.
Secondly, Mr Cossar argued he could have been redeployed into the vacant consumer/retail positions that were listed on Laminex’s new organisational chart. These included the positions of CX Manager, CX design consultant and two Designer roles. Mr Cossar argued that he had sufficient experience to work in these roles.
Employer argued worker was not right fit for other roles
Responding to the Fair Work unfair dismissal claim, Laminex offered a different perspective. It clarified to the Fair Work Commission that the Completions Manager role was a replacement for the internal Installations Manager position. Although the job ad used the term “Completions Manager” to “cast a wider net,” the role was fundamentally focused on installation, requiring “extensive cabinet making skills” and a trade background.
The previous incumbent had 30 years’ experience in cabinet making, and the successful external candidate had 20 years’ experience in cabinet making and kitchen installations. Laminex argued that Mr Cossar’s lack of a trade qualification made him unsuitable. It said that it would not have been reasonable to wait up to five years for him to obtain the qualification required.
Worker turned down alternative positions
In response to the vacant consumer/retail positions, Laminex told the Fair Work Commission that these roles were still occupied at the time of Mr Cossar’s dismissal. The employees in those roles resigned subsequently, and Laminex chose not to replace them, relying on attrition to further reduce headcount.
The company also cited that Mr Cossar was offered a list of “approximately 100 active vacancies” across Laminex’s parent company, Fletcher Group, at the termination meeting. It said that he did not identify any roles he wished to be redeployed into, stating that they did not suit his “passions.”
Fair Work unfair dismissal decision: Job was no longer needed
Mr Cossar’s unfair dismissal claim was heard by the Fair Work Commission in April 2025. It found that his role as Design Team Leader was no longer required to be performed by anyone. The Commission said Laminex had “sound” operational reasons related to the downturn in the housing market and the lower demand for prefabricated kitchens.
The Commission accepted uncontested evidence that Mr Cossar’s employment was not covered by a Modern Award or Enterprise Agreement. Therefore, it found that Laminex had no obligation to consult with Mr Cossar about his redundancy.
Wasn’t reasonable to redeploy to other roles
Next, the Fair Work Commission turned to the question of whether it was reasonable for Laminex to redeploy Mr Coassar. Regarding the Completions Manager role, it accepted that there were similarities with his former role and this role. However, the Commission found that the core of the role was installation and required a cabinet making qualification and experience.
Regarding the so-called vacant consumer/retail positions, the Commission accepted Laminex’s evidence that they were occupied at the time of Mr Cossar’s dismissal. Finally, regarding other roles within Fletcher Group, the Commission determined that Mr Cossar himself was not attracted to the positions because they did not involve his passions.
For these reasons, the Commission concluded that it was not reasonable to redeploy Mr Cossar to any of these roles. Ultimately, it ruled that his redundancy was genuine and that his Fair Work unfair dismissal claim should be thrown out.
Fair Work criticised employer’s process
Despite the ruling, the Fair Work Commission offered suggestions regarding Laminex’s management of the retrenchment process. It said that the company’s process did not meet the “level expected of a large employer.” The Commission noted that staff were not adequately informed of the danger to their jobs. It criticised the use of a vague term like “Haven Business Update” for a termination meeting, which meant Mr Coassar was “effectively given no notice their job is in peril.”
The Commission also questioned the utility of handing over a list of one hundred jobs “with no notice.” It noted that this happened at a meeting where Mr Cossar did not know he was going to be made redundant. The suggested preferable approach was to warn the employee that their position may be made surplus to requirements and provide time for consideration.
Were you told your job was redundant, but it doesn’t feel genuine?
You’re not alone. Many employers disguise unfair dismissals as redundancies to avoid paying proper entitlements or facing scrutiny. A Whole New Approach has helped thousands of Australian workers challenge sham redundancies and win fair compensation.
Our experienced workplace representatives understand how to spot the signs, build a strong case and help you make a Fair Work unfair dismissal claim. Strict 21-day deadlines apply, so don’t wait. Your first consultation is free and confidential — contact us at 1300 766 700 today to discuss your options.
