FWC orders two weeks' pay after ruling text-message dismissal harsh and unreasonable
A New Zealand-based salesman dismissed by text message has won an unfair dismissal claim against his Australian employer, despite living and working across the Tasman.
In a decision handed down on 6 May 2026, the Fair Work Commission ordered Brightest Australia Pty Ltd to pay David Sanderson the equivalent of two weeks' gross pay after finding his dismissal was harsh, unjust or unreasonable, in David Sanderson v Brightest Australia Pty. Ltd. [2026] FWC 1633.
Sanderson started with the app-development company on 16 September 2024 in a sales role with the job title of "Project Consultant," selling monthly "Flexi Plan" subscriptions to New Zealand customers from his home in New Zealand. His contract set a monthly target of five Flexi Plans, and over the duration of his employment he made 32 sales against what he said was a 75-sale obligation. Several of those 32 sales never converted into paying customers, with the applicant acknowledging that at least five sales in the August to December 2025 period did not proceed.
The first surprise in the case was jurisdictional. Brightest Australia presumably assumed that an employee living and working in New Zealand was beyond the reach of Australia's Fair Work Act 2009. Deputy President Farouque disagreed. Because Sanderson's employment contract was offered by the Australian company and accepted when his signed copy was received by email back in Victoria on 10 September 2024, the contract was formed in Australia. That single fact pulled him inside the definition of an "Australian-based employee" and gave the Commission jurisdiction over his dismissal.
The second surprise was what the Commission made of the employer's paper trail. Brightest pointed to two emails from the VP of Project Consulting on 22 July 2025, both with the subject line "Performance Warning". The Commission was unmoved. The content of those emails, the Deputy President found, was "more in the nature of an exhortation to improve rather than a clear indication to the application that he may face the prospect of dismissal due to poor performance." Alleged verbal warnings were also rejected. The respondent claimed the applicant's supervisor had given verbal warnings, but the supervisor did not attend the Determinative Conference or give evidence. CEO Mr Bandara also said he had personally warned the applicant, but could not provide specificity as to when. The Commission was not satisfied that any verbal warning sufficient to indicate a risk of dismissal had been given.
Brightest also pointed to clause 24 of the contract, which purported to allow termination on one week's notice if monthly sales targets were not met, bypassing the disciplinary procedure in clause 13. The Commission found that regardless of clause 24, no proper warning had been given. Because Brightest employs fewer than 15 staff, it was treated as a small business employer, but the Commission found the dismissal did not comply with the Small Business Fair Dismissal Code.
Sanderson said weekly meetings with the marketing team, set up to improve the quality of leads, simply stopped in April 2025 when the marketing manager stopped showing up. He told the Commission the leads coming through were poor quality and that customers often lacked the budget for the product, even at discounted pricing. He also said he had worked through a period of illness despite holding medical certification. The Deputy President accepted that the other two Australian-based sales staff were also missing their targets.
On 8 December 2025, Sanderson received a text message and then an email, issued under the name Elegant Media, the trading identity that also appears in his contract, telling him his employment was terminated effective immediately, citing performance. He was not invited to a meeting. He was not asked to respond.
The Commission accepted that Brightest had a valid reason to end the employment, noting Sanderson himself conceded the product model was not commercially viable in New Zealand. But the absence of a genuine warning, the lack of any opportunity to respond, and the failure to follow the employer's own disciplinary procedure tipped the balance. "I am satisfied that the dismissal was harsh, unjust or unreasonable," the Deputy President concluded.
Sanderson did not press for reinstatement, and the Commission did not consider it appropriate in any event. On compensation, the Deputy President took the view that, despite 15 months of service, the employment was unlikely to have continued for long given the lack of sales, and concluded it would not have lasted more than a further two weeks. That figure, two weeks' gross pay, was the order made.
The case is a sharp reminder that offshore employees may still be covered by Australian law depending on where their contract was formed. It also lands a clear message that labelling an email "Performance Warning" does not make it one, and that a contractual shortcut around a disciplinary procedure will not necessarily protect an employer from an unfair dismissal finding.
