Employer blames lack of work, Fair Work Commission orders diver reinstated

An employer blamed a lack of work. The Fair Work Commission found another reason - and ordered the diver reinstated. 

A Sydney commercial diver has won his job back after the Fair Work Commission ruled his dismissal unfair. The decision, published on June 9, 2026, turns on a mistake plenty of employers make: treating a performance concern as a redundancy. 

Moataz Moubarak worked full-time as a commercial diver for Headfor Pty Limited, trading as McLennans Diving Service, a small marine-services operator. He was dismissed verbally on December 3, 2025 with two weeks' notice, and his employment ended on December 17, 2025. 

The company kept its account simple. In its submissions, it said Moubarak's employment "was terminated due to a lack of available work, arising from the Respondent's operational requirements," and that "the dismissal was not related to misconduct or performance." Managing director Alan McLennan said in his witness statement that "the sole reason for the termination of Mr Moubarak's employment was the lack of available work." 

Deputy President Boyce did not accept that. Reading the minutes of the meeting where the dismissal happened, he found the diver "was dismissed because of a lack of available work, and because of his allegedly poor attitude" - and that the evidence for the poor attitude was "not properly before the Commission." 

That gap was decisive. At the December meeting, McLennan told Moubarak the company could keep him only if he had "a clear alignment with the goals of the directors," and warned that "if you deliberately withhold your labour, that will mean instant dismissal." The Commission read that as an offer to keep the diver on despite the downturn, provided his attitude improved. That is a conduct question, not a redundancy. 

And on conduct, the employer did almost nothing the law requires. The Commission found no valid reason for the dismissal. It found Moubarak was never clearly told the real reason, never given a genuine chance to respond, and never warned his job was at risk. Procedural fairness, the Deputy President found, did not occur. The company could have made the role redundant, or run a proper performance process. Instead, the "mix-matched approach of the Respondent ended up doing neither properly nor appropriately." 

The paperwork drew attention too. Moubarak said he never received the termination letter at the time, and that its electronic file was created on February 19, 2026, more than two months after he was let go. The Commission accepted he never got the letter, but found nothing sinister in it, accepting that McLennan honestly believed it had been handed over. 

The business is small - between two and six employees, with no dedicated HR specialist. The Commission was unmoved. The absence of an HR specialist, it said, does not relieve an employer of basic courtesy "even when implementing something as difficult and unpleasant as the termination of a person's employment." 

So Moubarak is going back. The Commission ordered the company to reinstate him as a full-time commercial diver at $60 an hour, preserve his continuity of service, and pay him for the wages lost between his dismissal and his return. McLennan had told the hearing he held no animosity toward the diver and had no objection to taking him back. 

For HR, the takeaway is about clean lines. If the problem is work volume, run a redundancy and meet the consultation and redeployment requirements. If the problem is conduct, say so, put it in writing, give the worker a real chance to answer, and warn them their job is on the line. Blur the two and skip the process, and a small employer can find itself rehiring the very person it tried to move on.