The Work Didn’t Disappear. The Redundancy Still Stood.

What Hooper v Barefoot Projects [2026] FWC 3950 teaches business owners about restructures that hold up at the Fair Work Commission

If you’ve ever been told you can’t make a role redundant because “someone still has to do the work”, this decision is for you.

On 15 October 2026, the Fair Work Commission dismissed an unfair dismissal claim against a Melbourne landscaping business that made its Project Coordinator redundant. The duties didn’t vanish. They were spread across the rest of the team. The Commission still found it was a genuine redundancy.

The business won because it could show its working: why it had to cut costs, how it consulted, what it did with the employee’s ideas, and why redeployment didn’t stack up. Here’s what happened and what you can take from it.

What Happened in Hooper v Barefoot Projects?

Mitchell Hooper started as a Project Coordinator with Barefoot Projects, a landscaping business, in September 2025. By mid-2026 the business was under serious financial pressure. Not enough consistent work was coming in and the directors were going without wages.

Here’s how it played out:

• 26 May 2026: Mitchell was told in person, then in writing, that his role was at risk because of a proposed restructure. He was invited to put forward suggestions.
• 27 May: Consultation meeting with the director and operations manager. He was offered a support person. He emailed his suggestions the same day.
• 1 June: Final decision made and notice given.
• 8 June: Employment ended.

He lodged an unfair dismissal claim seeking six weeks’ pay, just under $11,900 including super.

What Did the Employee Argue?

Three main things:

• The process was rushed and the outcome was decided before consultation started.
• His duties didn’t stop existing. They were just moved into new “hybrid roles”.
• Redeployment wasn’t genuinely considered, including a Construction Supervisor role later advertised by a related business, Barefoot Build.

He also said he never got a written explanation of why his redeployment ideas were knocked back.

We see these arguments in almost every redundancy claim. That’s why how this business answered them is worth your time.

Can a Redundancy Be Genuine if the Work Still Needs Doing?

Yes. This is the bit most business owners get wrong.

Under section 389 of the Fair Work Act 2009, the question is whether you still need that person’s job done by anyone. A job is the bundle of duties attached to the position, not every individual task inside it.

Barefoot Projects split the Project Coordinator duties across the team:

• the head estimator picked up more project management and procurement
• admin staff were trained to handle monthly claims and budget tracking
• site managers took on daily materials ordering and subcontractor management
• Procore, the project management tool, was rolled out to everyone instead of sitting with one role

The Commission said this is exactly what the law has in mind. The Explanatory Memorandum to the Act uses it as a textbook example: a business restructures for efficiency, spreads one person’s tasks across several others, and that job no longer exists.

So “the work still exists” isn’t the trump card employees think it is. “The job still exists” is a different story. Rename the role and hand it to someone new, or rehire into it a month later, and you’ve got a problem.

What Made the Process Stand Up?

Only six days passed between the first conversation and the final decision. The Commission still found the process wasn’t rushed. Here’s why.

• The thinking started well before the conversation. The director spent around two months working through options with his business coach and accountant before anyone was told.
• Redundancy was the last resort, and the evidence proved it. The directors went without pay, two staff who resigned weren’t replaced, and a part-owner shifted 20 hours of work to the related business. Financial records and payslips went into evidence.
• The award consultation rules were followed. The Gardening and Landscaping Services Award 2020 doesn’t set a minimum consultation period, and the Commission had no concerns about how it was done.
• The employee was asked for ideas, and they were considered. His main suggestion was a new combined site and office role estimating and tendering $2m to $5m projects. Reasonable idea. But it wouldn’t cut costs, which was the whole point.
• The landing was softened. He was offered an extra week of flexible hours to job hunt, plus a transition program. He didn’t take either up, but the offers showed good faith.

One more thing helped the business: the employee’s own email. It read as accepting the restructure and agreeing with much of it. Paper trails cut both ways.

Do You Have to Offer a Role in a Related Business?

Possibly. A redundancy isn’t genuine if it would have been reasonable to redeploy the person within your business or an associated entity.

Here, the related business, Barefoot Build, had two employees and contracted out all of its work. There was no role in June. The Construction Supervisor ad went up three months later, and the job needed trade qualifications to manage building trades. Mitchell wasn’t trade qualified and confirmed that at the hearing.

What this tells you:

• Redeployment is judged at the time of the dismissal, not months later.
• The role has to be one the person can actually do.
• “Reasonable” takes your finances into account. Moving someone into a new role that doesn’t reduce costs isn’t a fix when cost is the problem.

If you have related entities, check them and write down why nothing fits.

Do You Have to Respond to an Employee’s Suggestions in Writing?

Legally, no. The award requires you to promptly consider what employees raise. The Commission said there’s no requirement to satisfy the employee that their ideas couldn’t work.

Our view: do it anyway. A short written reply that lists each suggestion and why it doesn’t work takes 20 minutes. It shuts down the “they never considered it” argument before it starts. This business won without one. You might not be so lucky.

What Went Wrong, and Why It’s a Warning

The termination letter wrongly referred to severance pay. It was corrected straight away, but the business said the employee seemed understanding right up until that correction landed.

For context, NES redundancy pay only applies once an employee has at least 12 months’ continuous service. Mitchell had around nine months.

The error was made by the external HR company the business relied on. The Commission didn’t let it change the outcome. But it’s a fair bet it helped turn an accepting employee into an applicant, and that cost the business a day at the Commission and the stress of a hearing.

The lesson Your HR provider’s mistake is still your problem. Get entitlements calculated properly and have someone who knows what they’re doing check every letter before it goes out. Dodgy templates don’t just look bad. They start claims.

 

What Should You Do Before Restructuring?

Do these first

• Document the business reason: financials, options you looked at, and who you spoke to.
• Map where every duty in the role will go.
• Check your award or enterprise agreement consultation clause and follow it.
• Check redeployment across your business and any related entities. Write down why nothing fits.
• Calculate entitlements correctly: notice, redundancy pay if it applies, and leave.

Then tighten it up

• Respond to the employee’s suggestions in writing.
• Offer job search time or transition support.
• Get a second set of eyes on every letter.
• Think twice before advertising a similar role soon after.

Frequently Asked Questions

What is a genuine redundancy in Australia?

A dismissal is a genuine redundancy when the employer no longer needs the job done by anyone because of operational changes, has met any award or agreement consultation obligations, and couldn’t reasonably redeploy the employee within the business or an associated entity.

Can I make a role redundant if the duties are given to other staff?

Yes. Spreading a role’s duties across existing employees as part of a genuine restructure can still be a genuine redundancy. The job has to be gone, not just renamed or handed to a replacement.

How long does redundancy consultation need to take?

Most modern awards don’t set a minimum period. What matters is that consultation is real: you give information early, invite feedback and genuinely consider it before deciding. In this case six days was enough because the groundwork was done properly.

Do I have to redeploy an employee to a related company?

Only if it would be reasonable in all the circumstances. That depends on whether a suitable role exists at the time, whether the person has the skills or qualifications for it, and the financial position of the business.

Can an employee claim unfair dismissal if the redundancy is genuine?

No. A genuine redundancy is a complete answer to an unfair dismissal claim. The employee could still bring a general protections claim if they believe they were selected for a prohibited reason.

Planning a restructure? Get the checklist. Every step this business got right, and the one it didn’t, in one simple checklist. Cut through the BS and get your redundancy process watertight before you have the conversation. Download the Redundancy Checklist