Why the Fair Work Commission says this employee's job ended without a dismissal at all
A Victorian learning support officer lost his unfair dismissal case before it began - no one had legally dismissed him.
The Fair Work Commission ruled on May 21, 2026 that Chathura Senanayake, who worked at a primary school in southeast Melbourne, was not dismissed within the meaning of section 386 of the Fair Work Act. His employment ended automatically under a Victorian statute after he was absent from duty for three months without approved leave.
Deputy President Farouque dismissed the application for want of jurisdiction.
Senanayake started with the Department of Education in May 2023. He moved to the primary school in January 2025. In late February 2025 he was diagnosed with a medical condition and went off work. His doctor recommended a return on reduced hours - three days a week, 18 hours, unable to manage more than one student at a time.
The school engaged with his return-to-work request. On May 1, 2025, the Acting Principal asked for his consent to a voluntary doctor-to-doctor conversation about the restriction. He agreed. The conversation took place on May 6, 2025.
On June 2, 2025, the then Principal wrote to Senanayake telling him he had been absent for more than 13 continuous weeks, that Ministerial Order No. 1388 required a department-approved medical practitioner to clear him before he could come back, and that an independent medical examination had been booked for June 23, 2025.
He did not attend.
He had also filed a complaint in the Magistrates' Court of Victoria in early June 2025, and told the principal he would not engage further while that matter was on foot.
Senanayake argued he had applied for leave through the department's eduPay system on or about 23 May 2025. The Department said there was no record of it. Megan Ramcharan, a Senior Lawyer at the Department of Education, gave evidence on the system. After a determinative conference on March 3, 2026, the Commission issued an order to produce. The Department produced an audit spreadsheet of his leave records. It showed nothing for 23 May 2025.
Deputy President Farouque accepted the Department's evidence. No leave application was made.
That finding was the case. Section 2.4.34(1) of the Education and Training Reform Act 2006 (Vic) says an ongoing teaching service employee absent from duty for three months other than on approved leave "ceases to be an employee in the teaching service."
On October 20, 2025, the principal sent a Preliminary View letter setting out her view that his employment had ceased on 23 August 2025 and inviting him to respond. He did not. On November 19, 2025, the principal confirmed the position in writing.
The Commission applied the reasoning from Lennie v Department of Education [2024] FWC 1281 and Stark v Department of Education [2025] FWC 3520. Both held that section 2.4.34 operates automatically once the conditions are met. The employee ceases to be employed without any act by the Department. That cessation is not a "dismissal" under section 386 of the Fair Work Act.
Senanayake alternatively argued he was forced to resign. The Deputy President called that "simply unsustainable" - there was no resignation on the facts. He also said the Department obstructed his return. The Deputy President was "not at all satisfied" of that either. The IME direction was reasonable, she found, and required by Ministerial Order No. 1388 in any event.
For HR teams, the case is a reminder of how statutory cessation provisions can override the standard unfair dismissal framework, particularly in the public sector. It is also a reminder that records matter. The Department's win turned on proving a negative - that no leave application existed - through its eduPay audit, an email search of the worker's account, and an order to produce. Without that paper trail, the case would have been a different fight.
The decision is final at first instance. The application was dismissed by order of the Deputy President.
