Employer terminated salesperson by email and argued that decision was based on drop off in sales
A salesperson challenged his dismissal, arguing the employer was not a small business when counting associated entities, the position was not genuinely redundant, and the employer failed to provide evidence or attend the hearing despite orders.
The worker contended the employer's director controlled multiple entities despite a sister being listed as a director, no operational changes justified redundancy, and serious misconduct allegations raised later lacked credibility.
The employer maintained the worker's position was made redundant due to ongoing sales issues, the worker's overseas location meant they were unable to service clients in the showroom, and sales had drastically dropped.
Employment and dismissal by email
The employer operated under the business name Aussie Batteries and Solar. The worker first commenced employment with an entity owned by the employer's director in May 2017. From this time, he was employed by various entities owned and operated by the director.
In September 2023, while living in Italy, the worker negotiated to work remotely and then returned to Australia in November 2023 to work from the employer's showroom. On 25 January 2024, he signed a new employment agreement with a salary of $90,000 per annum.
On 30 July 2024, the worker noted that the employer had issues with its cash flow and offered to reduce his ordinary hours and remuneration to 78.9% pro-rata to assist the employer. In August 2024, the worker returned to Italy, authorized to work remotely.
On 19 March 2025, the director sent text message: "Honestly I wish you where hear in oz to help with modular sales. Really need some extra help!" On 1 April 2025, the worker attempted to log on to the employer's software systems and noticed that he could not access the systems.
He contacted the general manager, who said she would need to speak to the director. The worker then contacted the director who told him they would talk over videoconference the following day.
The following day, the director sent email: "Hi, your position has been made redundant and your services is no longer required offering you standard one weeks notice starting today. We wish you best of luck with all future endeavours."
The worker stated that prior to receiving this email, he had not received a call from the director nor any written or verbal warning in relation to the redundancy or issues with his performance. The worker did not return to work after receiving the email, as he considered his dismissal was immediate.
Serious misconduct allegations raised later
On 3 April 2025, the worker sent an email outlining what he considered to be his outstanding entitlements. The same day, he received a response: "Please stop communication with staff as you no longer work for the company and this will be classified as harassment and dealt with accordingly. If you wish to pursue your employment case with fair work, please do."
The worker stated the dismissal had a significant psychological impact. The worker made a WorkCover claim for psychological injuries sustained as a result of his dismissal, which was later accepted on 19 May 2025.
When the employer filed response, the director stated: "It should also be noted that I wanted to Fire [the worker] for serious misconduct. Due to providing internal sales documents to a past employee on numerous occasions … [His] decision to move overseas meant that he was not able to service clients in our showroom. Sales had drasitically dropped and his position was not sustainable on phone sales."
Upon receiving the employer's response, the worker was surprised that the employer indicated it was a small business employer. He stated the director was involved in the financial and operational decision-making. The worker had to seek the approval of the director for every sales-related decision.
He therefore believed the director had a level of control and decision-making authority. The worker stated he did not recall having any dealings with the director's sister at any time during his employment. The worker stated he was not notified of, nor given any opportunity to respond to, serious misconduct or performance-related concerns alleged by the employer.
Director controlled multiple entities
The worker recalled that the director employed individuals in other companies he directed, such as Gathercole Group and Dream Modular Homes. The worker said that some of these employees were also used by the employer. While he stated that it was not clear what the relationship was, in his view, there was some connection.
The worker recalled that it was common for employees to be transferred to Dream Modular Homes, which operated at the same head office in Chevallum, Queensland. At the time of his dismissal, the worker stated that 17 people were employed.
The employer stated alongside its response that nine employees were employed from 1 March 2025 to 30 April 2025. The director noted the worker was hired when he had no involvement or managerial role in the business.
The director stated he had no knowledge of the worker's hiring for three months, at which time the director's sister asked him to assist due to the declining financials. The director stated he offered to help and replaced the manager as interim manager. He noted that all financial decisions were, and still are, his sister's.
Employer failed to attend hearing
The Commissioner issued directions requiring both parties to file evidence and submissions in preparation for the hearing. The directions required the employer to demonstrate whether it was a small business employer. The director and his sister were each directed to file a witness statement detailing their involvement in any corporate entities.
The employer did not file any material in accordance with the directions. The Commissioner wrote to the parties seeking an explanation from the employer. No response was received. Accordingly, the Commissioner issued orders requiring the attendance of the director and his sister at the hearing.
The director sent an email stating: "It is the companies position that the previous email covered all points of reply, regarding lyre commissioners directions, specifically, small Business and redundancy. No witness statements are be added no further information is Outstanding or to be provided."
In response, the Commissioner's chambers sent correspondence stating the material filed by the employer to date was insufficient to substantiate its position. No further response was received from the director or the employer.
Despite the Commissioner's orders, the director and his sister did not attend the hearing. Numerous attempts were made to contact the employer without success. The hearing proceeded in the absence of the employer.
The Commissioner noted the Commission had undertaken a search of Dream Modular Homes, which was identified by the worker as another of the director's corporate entities. The search revealed this entity had the same principal place of business address as the director's other entities in Chevallum, Queensland. The sole director of Dream Modular Homes was the director.
The Commissioner had regard to the control that the director could exert over the way in which the employer operated. The Commissioner took into account and accepted the worker's evidence about the control the director had over the way he performed his work, and the absence of instructions from the director's sister. The Commissioner also had regard to the fact that the dismissal was initiated by the director.
Associated entities found
The Commissioner was satisfied that on 2 April 2025 the employer and Dream Modular Homes were associated entities. There were at least 15 employees employed across the two entities on 2 April 2025 and therefore the employer was not a small business employer. The director's unsworn evidence was that it was his sister's position that the worker be made redundant.
The director's evidence was neither direct, sworn nor tested due to his failure to attend the hearing, despite being ordered to attend. His evidence was not accepted, and therefore the Commission was unable to be satisfied that the employer no longer required the worker's job to be performed by anyone because of changes in operational requirements. Accordingly, the dismissal did not satisfy the meaning of genuine redundancy.
The Commissioner found that just two weeks prior to the dismissal, the director sent a text message to the worker stating how he wished he were local to assist with work in Dream Modular Homes. It was a compliment. Without any intervening event, the director dismissed the worker on 2 April 2025. There was no sworn evidence that could be tested before the Commission in respect of the reason for the dismissal.
The Commissioner was not satisfied that there was a valid reason for the dismissal. The worker was not afforded any opportunity to respond to any reason offered by the employer as the reason for the dismissal.
The dismissal of the worker, effected by the director, was curt and cruel. On 1 April 2025, the director committed to speaking with the worker over video conference on 2 April 2025. He failed to do so, instead sending a notification of termination by email. The director's actions, in the Commissioner's view, were cowardly.
The Commissioner determined that the worker's dismissal was harsh, unjust and unreasonable. The Commissioner was satisfied that it was inappropriate for the worker to be reinstated.
He now suffered from a mental health condition, which the Commissioner was certain would be exacerbated by working under the director. The employer was ordered to pay the worker compensation plus superannuation.
