Illawarra Coal Rushed Its Redundancy Consultation, but the Dismissal Wasn't Unfair: What the Decision Means

The worker started with Illawarra Coal Holdings Pty Ltd on 10 January 2023 as Supervisor Reporting and Rehabilitation at the Cordeaux Mine. She worked two days a week in a job share (0.4 of a full-time role), one of them from home, and is the full-time carer for her son, who has special needs. Her job-share partner worked the other three days.

South32 sold Illawarra Coal to GM3 in a deal completed on 29 August 2024, with South32 providing payroll, HR, finance and technology support under a transitional agreement that ruled out major restructures. Once that agreement ended in April 2025 the company reviewed its labour needs, concluded the 0.4 role was surplus because the duties could be done on a 0.6 basis as they had been for years, and set itself a date. Rather than simply make the 0.4 role redundant, the director assessed both job-share employees against a selection matrix for the remaining 0.6 role: the worker scored 12, her partner 17.

At a town hall on 23 July 2025 the chief executive outlined the restructure, and about 19 individual meetings followed that day. In hers, the worker was told her role was redundant, her partner would keep the 0.6 role, and she would not work out her notice because the redundancy took effect on 25 July 2025. Roughly 60 hours from decision to handover (report of the decision).

A dismissal is a "genuine redundancy" under section 389(1) of the Fair Work Act only if both limbs are met: the job is no longer required to be performed by anyone because of changes in the employer's operational requirements, and the employer has complied with any consultation obligation in the applicable award or agreement. A genuine redundancy is a complete answer to an unfair dismissal claim.

Commissioner P Ryan had "no hesitation" on the first limb, citing the High Court's 2025 decision in Helensburgh Coal v Bartley that an employer's decision to make changes "is not qualified by any requirement of reasonableness" and "cannot be set aside or second-guessed".

The second limb failed. Clause 30 of the Black Coal Mining Industry Award 2020 required the company to notify affected employees, discuss the effects and possible mitigation, and provide relevant information in writing. Notice was given, but once the decision was made Illawarra Coal "shoe-horned the consultation process to fit their self-imposed deadline of 25 July 2025". The company's argument that it could have extended consultation if the worker had raised something missed the point: the haste of the process it chose was the breach. So the dismissal was not a genuine redundancy, and the claim proceeded to the merits.

Once the genuine-redundancy defence falls away, the Commission asks the ordinary section 387 question: was the dismissal harsh, unjust or unreasonable? Here the answer was no. The role genuinely was surplus, the selection between the two job-share employees was structured and documented, the partner had longer service in the role, and the outcome would have been the same on identical scores. The consultation breach was real but did not change what would have happened. The application was dismissed in [2026] FWC 3480 on 11 September 2026.

The decision is a clean illustration of two different questions people run together. "Was my redundancy genuine?" is about the jurisdictional shield. "Was my dismissal unfair?" is about the whole picture, and a consultation failure is one factor in it, weighed against everything else. A breach that would have changed the outcome, for example where proper consultation would have surfaced a redeployment option, carries much more weight than one that would not.

• Check your award's consultation clause. Most modern awards require notice of a definite decision, discussion of effects and mitigation, and written information. A rushed process can knock out the genuine-redundancy defence, but you still need to show the dismissal was unfair overall.
• Raise redeployment and alternatives in writing during consultation. That is where a breach starts to matter, because it shows what proper consultation might have produced.
• Work out your entitlements now. Our redundancy pay calculator gives the National Employment Standards scale by years of service, and the Centrelink waiting period tool shows how a payout affects income support. The Fair Work Ombudsman's redundancy page covers notice and consultation basics.
• Job-share and part-time roles: being assessed against the other half of your role is lawful if the selection is genuine and documented. Ask for the criteria and your scores.